FIRST DIVISION

[G.R. No. 133778. March 14, 2000.]

ENGRACE NIAL for Herself and as Guardian ad
Litem of the minors BABYLINE NIAL, INGRID
NIAL, ARCHIE NIAL & PEPITO NIAL, JR.,
petitioners, vs. NORMA BAYADOG, respondent.
Roldan R. Mangubat for petitioners.
Daryll A. Amante for private respondent.
SYNOPSIS
Pepito Nial was married to Teodulfa Bellones.
Out of their marriage were born herein
petitioners. Teodulfa was shot by Pepito resulting
in her death on April 24, 1985. One year and 8
months thereafter, Pepito and respondent Norma
Badayog got married without any marriage
license. On February 19, 1997, Pepito died in a
car accident. After their father's death, petitioners
filed a petition for declaration of nullity of the
marriage of Pepito to Norma alleging that the said
marriage was void for lack of a marriage license.
The case was filed under the assumption that the
validity or invalidity of the second marriage would
affect petitioner's successional rights. Norma filed
a motion to dismiss on the ground that
petitioners have no cause of action since they are
not among the persons who could file an action
for "annulment of marriage" under Article 47 of
the Family Code. The lower court ruled that
petitioners should have filed the action to declare
null and void their father's marriage to
respondent before his death, applying by analogy
Article 47 of the Family Code which enumerates
the time and the persons who could initiate an
action for annulment of marriage. Hence, this
petition. AcTDaH
The Supreme Court reversed and set aside the
assailed decision of the trial court. The Court
ruled that the second marriage involved in this
case is not covered by the exception to the
requirement of a marriage license, therefore, it is
void ab initio because of the absence of such
element. According to the Court, it can not be
said that Pepito and respondent have lived with
each other as husband and wife for at least five
years prior to their wedding day. From the time
Pepito's first marriage was dissolved to the time
of his marriage with respondent, only about
twenty months had elapsed. Even assuming that
Pepito and his first wife had separated in fact,
and thereafter both Pepito and respondent had
started living with each other that has already
lasted for five years, the fact remains that their
five-year period cohabitation was not the
cohabitation contemplated by law. It should be in
the nature of a perfect union that is valid under
the law but rendered imperfect only by the
absence of the marriage contract. Pepito had a
subsisting marriage at the time when he started
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cohabiting with respondent. It is immaterial that

when they lived with each other, Pepito had
already been separated in fact from his lawful
spouse. The subsistence of the marriage even
where there was actual severance of the filial
companionship between the spouses cannot
make any cohabitation by either spouse with any
third party as being one as "husband and wife."
The Court also ruled that petitioners have the
personality to file a petition to declare their
father's marriage void because a void marriage
can be attacked collaterally and can be
questioned even after the death of either party.
SYLLABUS
1.CIVIL LAW; CIVIL CODE; MARRIAGE;
MARRIAGES OF EXCEPTIONAL CHARACTER;
THE
5-YEAR
COHABITATION
PERIOD
CONTEMPLATED BY ARTICLE 76 OF THE CIVIL
CODE SHOULD BE THE YEARS IMMEDIATELY
BEFORE THE DAY OF THE MARRIAGE AND IT
SHOULD BE A PERIOD OF COHABITATION
CHARACTERIZED BY EXCLUSIVITY MEANING
NO THIRD PARTY WAS INVOLVED AT ANY
TIME WITHIN THE 5 YEARS AND CONTINUITY
THAT IS UNBROKEN. Working on the
assumption that Pepito and Norma have lived
together as husband and wife for five years
without the benefit of marriage, that five-year
period should be computed on the basis of a
cohabitation as "husband and wife" where the
only missing factor is the special contract of
marriage to validate the union. In other words,
the five-year common-law cohabitation period,
which is counted back from the date of
celebration of marriage, should be a period of
legal union had it not been for the absence of the
marriage. This 5-year period should be the years
immediately before the day of the marriage and it
should be a period of cohabitation characterized
by exclusivity meaning no third party was
involved at any time within the 5 years and
continuity that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed
without any distinction as to whether the parties
were capacitated to marry each other during the
entire five years, then the law would be
sanctioning immorality and encouraging parties
to have common law relationships and placing
them on the same footing with those who lived
faithfully with their spouse. Marriage being a
special relationship must be respected as such
and its requirements must be strictly observed.
The presumption that a man and a woman
deporting themselves as husband and wife is
based on the approximation of the requirements
of the law. The parties should not be afforded any
excuse to not comply with every single
requirement and later use the same missing
element as a pre-conceived escape ground to

nullify their marriage. There should be no

exemption from securing a marriage license
unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the
two shall make it known to the local civil registrar.
2.ID.; ID.; ID.; ID.; CASE AT BAR; THE FIVEYEAR
COHABITATION
OF
PETITIONERS'
FATHER AND PRIVATE RESPONDENT WAS
NOT THE COHABITATION CONTEMPLATED BY
LAW; THE SUBSISTENCE OF THE MARRIAGE
EVEN
WHERE
THERE
WAS
ACTUAL
SEVERANCE OF THE FILIAL COMPANIONSHIP
BETWEEN THE SPOUSES CANNOT MAKE ANY
COHABITATION BY EITHER SPOUSE WITH
ANY THIRD PARTY AS BEING ONE AS
"HUSBAND AND WIFE." In this case, at the
time of Pepito and respondent's marriage, it
cannot be said that they have lived with each
other as husband and wife for at least five years
prior to their wedding day. From the time Pepito's
first marriage was dissolved to the time of his
marriage with respondent, only about twenty
months had elapsed. Even assuming that Pepito
and his first wife had separated in fact, and
thereafter both Pepito and respondent had
started living with each other that has already
lasted for five years, the fact remains that their
five-year period cohabitation was not the
cohabitation contemplated by law. It should be in
the nature of a perfect union that is valid under
the law but rendered imperfect only by the
absence of the marriage contract. Pepito had a
subsisting marriage at the time when he started
cohabiting with respondent. It is immaterial that
when they lived with each other, Pepito had
already been separated in fact from his lawful
spouse. The subsistence of the marriage even
where there was actual severance of the filial
companionship between the spouses cannot
make any cohabitation by either spouse with any
third party as being one as "husband and wife."
3.ID.; ID.; ID.; ID.; PETITIONERS HAVE THE
PERSONALITY TO FILE A PETITION TO
DECLARE THEIR FATHER'S MARRIAGE VOID
EVEN AFTER HIS DEATH; VOID MARRIAGES
CAN BE ATTACKED COLLATERALLY AND CAN
BE QUESTIONED EVEN AFTER THE DEATH OF
EITHER PARTY. Contrary to respondent
judge's ruling, Article 47 of the Family Code
cannot be applied even by analogy to petitions
for declaration of nullity of marriage. The second
ground for annulment of marriage relied upon by
the trial court, which allows "the sane spouse" to
file an annulment suit "at any time before the
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death of either party" is inapplicable. Article 47

pertains to the grounds, periods and persons who
can file an annulment suit, not a suit for
declaration of nullity of marriage. The Code is
silent as to who can file a petition to declare the
nullity of a marriage. Voidable and void marriages
are not identical. A marriage that is annullable is
valid until otherwise declared by the court;
whereas a marriage that is void ab initio is
considered as having never to have taken place
and cannot be the source of rights. The first can
be generally ratified or confirmed by free
cohabitation or prescription while the other can
never be ratified. A voidable marriage cannot be
assailed collaterally except in a direct proceeding
while a void marriage can be attacked collaterally.
Consequently, void marriages can be questioned
even after the death of either party but voidable
marriages can be assailed only during the lifetime
of the parties and not after death of either, in
which case the parties and their offspring will be
left as if the marriage had been perfectly valid.
That is why the action or defense for nullity is
imprescriptible, unlike voidable marriages where
the action prescribes. Only the parties to a
voidable marriage can assail it but any proper
interested party may attack a void marriage. Void
marriages have no legal effects except those
declared by law concerning the properties of the
alleged spouses, regarding co-ownership or
ownership through actual joint contribution, and
its effect on the children born to such void
marriages as provided in Article 50 in relation to
Article 43 and 44 as well as Article 51, 53 and 54
of the Family Code. On the contrary, the property
regime governing voidable marriages is generally
conjugal partnership and the children conceived
before its annulment are legitimate.
DECISION
YNARES-SANTIAGO, J p:
May the heirs of a deceased person file a petition
for the declaration of nullity of his marriage after
his death?
Pepito Nial was married to Teodulfa Bellones on
September 26, 1974. Out of their marriage were
born herein petitioners. Teodulfa was shot by
Pepito resulting in her death on April 24, 1985.
One year and 8 months thereafter or on
December 11, 1986, Pepito and respondent
Norma Badayog got married without any
marriage license. In lieu thereof, Pepito and
Norma executed an affidavit dated December 11,
1986 stating that they had lived together as
husband and wife for at least five years and were
thus exempt from securing a marriage license. On
February 19, 1997, Pepito died in a car accident.
After their father's death, petitioners filed a
petition for declaration of nullity of the marriage

of Pepito to Norma alleging that the said marriage

was void for lack of a marriage license. The case
was filed under the assumption that the validity
or invalidity of the second marriage would affect
petitioner's successional rights. Norma filed a
motion to dismiss on the ground that petitioners
have no cause of action since they are not among
the persons who could file an action for
"annulment of marriage" under Article 47 of the
Family Code. LibLex
Judge Ferdinand J. Marcos of the Regional Trial
Court of Toledo City, Cebu, Branch 59, dismissed
the petition after finding that the Family Code is
"rather silent, obscure, insufficient" to resolve the
following issues:
(1)Whether or not plaintiffs have a cause of
action against defendant in asking for the
declaration of the nullity of marriage of their
deceased father, Pepito G. Nial, with her
specially so when at the time of the filing of this
instant suit, their father Pepito G. Nial is already
dead;
(2)Whether or not the second marriage of
plaintiffs' deceased father with defendant is null
and void ab initio;
(3)Whether or not plaintiffs are estopped from
assailing the validity of the second marriage after
it was dissolved due to their father's death. 1
Thus, the lower court ruled that petitioners
should have filed the action to declare null and
void their father's marriage to respondent before
his death, applying by analogy Article 47 of the
Family Code which enumerates the time and the
persons who could initiate an action for
annulment of marriage. 2 Hence, this petition for
review with this Court grounded on a pure
question of law.
This petition was originally dismissed for noncompliance with Section 11, Rule 13 of the 1997
Rules of Civil Procedure, and because "the
verification failed to state the basis of petitioner's
averment that the allegations in the petition are
'true and correct.'" It was thus treated as an
unsigned pleading which produces no legal effect
under Section 3, Rule 7, of the 1997 Rules. 3
However, upon motion of petitioners, this Court
reconsidered the dismissal and reinstated the
petition for review. 4
The two marriages involved herein having been
solemnized prior to the effectivity of the Family
Code (FC), the applicable law to determine their
validity is the Civil Code which was the law in
effect at the time of their celebration. 5 A valid
marriage license is a requisite of marriage under
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Article 53 of the Civil Code, 6 the absence of

which renders the marriage void ab initio
pursuant to Article 80(3) 7 in relation to Article
58. 8 The requirement and issuance of marriage
license is the State's demonstration of its
involvement and participation in every marriage,
in the maintenance of which the general public is
interested. 9 This interest proceeds from the
constitutional mandate that the State recognizes
the sanctity of family life and of affording
protection to the family as a basic "autonomous
social
institution."
10
Specifically,
the
Constitution considers marriage as an "inviolable
social institution," and is the foundation of family
life which shall be protected by the State. 11 This
is why the Family Code considers marriage as "a
special contract of permanent union" 12 and case
law considers it not just an adventure but a
lifetime commitment." 13
However there are several instances recognized
by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in
Article 76, 14 referring to the marriage of a man
and a woman who have lived together and
exclusively with each other as husband and wife
for a continuous and unbroken period of at least
five years before the marriage. The rationale why
no license is required in such case is to avoid
exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage
due to the publication of every applicant's name
for a marriage license. The publicity attending the
marriage license may discourage such persons
from legitimizing their status. 15 To preserve
peace in the family, avoid the peeping and
suspicious eye of public exposure and contain the
source of gossip arising from the publication of
their names, the law deemed it wise to preserve
their privacy and exempt them from that
requirement. cda
There is no dispute that the marriage of
petitioners' father to respondent Norma was
celebrated without any marriage license. In lieu
thereof, they executed an affidavit stating that
"they have attained the age of majority, and,
being unmarried, have lived together as husband
and wife for at least five years, and that we now
desire to marry each other." 16 The only issue
that needs to be resolved pertains to what nature
of cohabitation is contemplated under Article 76
of the Civil Code to warrant the counting of the
five year period in order to exempt the future
spouses from securing a marriage license. Should
it be a cohabitation wherein both parties are
capacitated to marry each other during the entire
five-year continuous period or should it be a
cohabitation wherein both parties have lived

together and exclusively with each other as

husband and wife during the entire five-year
continuous period regardless of whether there is
a legal impediment to their being lawfully
married, which impediment may have either
disappeared or intervened sometime during the
cohabitation period?
Working on the assumption that Pepito and
Norma have lived together as husband and wife
for five years without the benefit of marriage,
that five-year period should be computed on the
basis of a cohabitation as "husband and wife"
where the only missing factor is the special
contract of marriage to validate the union. In
other
words,
the
five-year
common-law
cohabitation period, which is counted back from
the date of celebration of marriage, should be a
period of legal union had it not been for the
absence of the marriage. This 5-year period
should be the years immediately before the day
of the marriage and it should be a period of
cohabitation characterized by exclusivity
meaning no third party was involved at any time
within the 5 years and continuity that is
unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction
as to whether the parties were capacitated to
marry each other during the entire five years,
then the law would be sanctioning immorality and
encouraging parties to have common law
relationships and placing them on the same
footing with those who lived faithfully with their
spouse. Marriage being a special relationship
must be respected as such and its requirements
must be strictly observed. The presumption that a
man and a woman deporting themselves as
husband and wife is based on the approximation
of the requirements of the law. The parties should
not be afforded any excuse to not comply with
every single requirement and later use the same
missing element as a pre-conceived escape
ground to nullify their marriage. There should be
no exemption from securing a marriage license
unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the
two shall make it known to the local civil registrar.
17 The Civil Code provides:

registrar shall forthwith make an investigation,

examining persons under oath. . . ."
This is reiterated in the Family Code thus:
Article 17 provides in part: ". . . . This notice shall
request all persons having knowledge of any
impediment to the marriage to advise the local
civil registrar thereof. . . . ."
Article 18 reads in part: ". . . . In case of any
impediment known to the local civil registrar or
brought to his attention, he shall note down the
particulars thereof and his findings thereon in the
application for a marriage license. . . . ." cdrep
This is the same reason why our civil laws, past or
present, absolutely prohibited the concurrence of
multiple marriages by the same person during
the
same
period.
Thus,
any
marriage
subsequently contracted during the lifetime of
the first spouse shall be illegal and void, 18
subject only to the exception in cases of absence
or where the prior marriage was dissolved or
annulled. The Revised Penal Code complements
the civil law in that the contracting of two or more
marriages and the having of extramarital affairs
are considered felonies, i.e., bigamy and
concubinage and adultery. 19 The law sanctions
monogamy.

Article 63: ". . . . This notice shall request all

persons having knowledge of any impediment to
the marriage to advice the local civil registrar
thereof. . . . ."

In this case, at the time of Pepito and

respondent's marriage, it cannot be said that
they have lived with each other as husband and
wife for at least five years prior to their wedding
day. From the time Pepito's first marriage was
dissolved to the time of his marriage with
respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first
wife had separated in fact, and thereafter both
Pepito and respondent had started living with
each other that has already lasted for five years,
the fact remains that their five-year period
cohabitation
was
not
the
cohabitation
contemplated by law. It should be in the nature of
a perfect union that is valid under the law but
rendered imperfect only by the absence of the
marriage contract. Pepito had a subsisting
marriage at the time when he started cohabiting
with respondent. It is immaterial that when they
lived with each other, Pepito had already been
separated in fact from his lawful spouse. The
subsistence of the marriage even where there
was actual severance of the filial companionship
between the spouses cannot make any
cohabitation by either spouse with any third party
as being one as "husband and wife."

Article 64: "Upon being advised of any alleged

impediment to the marriage, the local civil

Having determined that the second marriage

involved in this case is not covered by the

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exception to the requirement of a marriage

license, it is void ab initio because of the absence
of such element.
The next issue to be resolved is: do petitioners
have the personality to file a petition to declare
their father's marriage void after his death?

Contrary to respondent judge's ruling, Article 47

of the Family Code 20 cannot be applied even by
analogy to petitions for declaration of nullity of
marriage. The second ground for annulment of
marriage relied upon by the trial court, which
allows "the sane spouse" to file an annulment suit
"at any time before the death of either party" is
inapplicable. Article 47 pertains to the grounds,
periods and persons who can file an annulment
suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage.
Voidable and void marriages are not identical. A
marriage that is annullable is valid until otherwise
declared by the court; whereas a marriage that is
void ab initio is considered as having never to
have taken place 21 and cannot be the source of
rights. The first can be generally ratified or
confirmed by free cohabitation or prescription
while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in
a direct proceeding while a void marriage can be
attacked
collaterally.
Consequently,
void
marriages can be questioned even after the
death of either party but voidable marriages can
be assailed only during the lifetime of the parties
and not after death of either, in which case the
parties and their offspring will be left as if the
marriage had been perfectly valid. 22 That is why
the action or defense for nullity is imprescriptible,
unlike voidable marriages where the action
prescribes. Only the parties to a voidable
marriage can assail it but any proper interested
party may attack a void marriage. Void marriages
have no legal effects except those declared by
law concerning the properties of the alleged
spouses, regarding co-ownership or ownership
through actual joint contribution, 23 and its effect
on the children born to such void marriages as
provided in Article 50 in relation to Article 43 and
44 as well as Article 51, 53 and 54 of the Family
Code. On the contrary, the property regime
governing voidable marriages is generally
conjugal partnership and the children conceived
before its annulment are legitimate.
Contrary to the trial court's ruling, the death of
petitioner's father extinguished the alleged
marital bond between him and respondent. The
conclusion is erroneous and proceeds from a
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wrong premise that there was a marriage bond

that was dissolved between the two. It should be
noted that their marriage was void hence it is
deemed as if it never existed at all and the death
of either extinguished nothing. cdasia
Jurisprudence under the Civil Code states that no
judicial decree is necessary in order to establish
the nullity of a marriage. 24 "A void marriage
does not require a judicial decree to restore the
parties to their original rights or to make the
marriage void but though no sentence of
avoidance be absolutely necessary, yet as well
for the sake of good order of society as for the
peace of mind of all concerned, it is expedient
that the nullity of the marriage should be
ascertained and declared by the decree of a court
of competent jurisdiction." 25 "Under ordinary
circumstances, the effect of a void marriage, so
far as concerns the conferring of legal rights upon
the parties, is as though no marriage had ever
taken place. And therefore, being good for no
legal purpose, its invalidity can be maintained in
any proceeding in which the fact of marriage may
be material, either direct or collateral, in any civil
court between any parties at any time, whether
before or after the death of either or both the
husband and the wife, and upon mere proof of
the facts rendering such marriage void, it will be
disregarded or treated as non-existent by the
courts." It is not like a voidable marriage which
cannot be collaterally attacked except in direct
proceeding instituted during the lifetime of the
parties so that on the death of either, the
marriage cannot be impeached, and is made
good ab initio. 26 But Article 40 of the Family
Code expressly provides that there must be a
judicial declaration of the nullity of a previous
marriage, though void, before a party can enter
into a second marriage 27 and such absolute
nullity can be based only on a final judgment to
that effect. 28 For the same reason, the law
makes either the action or defense for the
declaration of absolute nullity of marriage
imprescriptible. 29 Corollarily, if the death of
either party would extinguish the cause of action
or the ground for defense, then the same cannot
be considered imprescriptible.
However, other than for purposes of remarriage,
no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes,
such as but not limited to determination of
heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property
regime, or a criminal case for that matter, the
court may pass upon the validity of marriage
even in a suit not directly instituted to question
the same so long as it is essential to the
determination of the case. This is without

prejudice to any issue that may arise in the case.

When such need arises, a final judgment of
declaration of nullity is necessary even if the
purpose is other than to remarry. The clause "on
the basis of a final judgment declaring such
previous marriage void" in Article 40 of the Family
Code connotes that such final judgment need not
be obtained only for purpose of remarriage.
WHEREFORE, the petition is GRANTED. The
assailed Order of the Regional Trial Court, Toledo
City, Cebu, Branch 59, dismissing Civil Case No.
T-639, is REVERSED and SET ASIDE. The said case
is ordered REINSTATED. cdtai
SO ORDERED.
Davide, Jr., C.J., Puno and Kapunan, JJ., concur.
Pardo, J., is on official business abroad.
FIRST DIVISION
[A.M. No. MTJ-00-1329. March 8, 2001.]
HERMINIA BORJA-MANZANO, petitioner, vs.
JUDGE ROQUE R SANCHEZ, MTC, Infanta,
Pangasinan, respondent.
RESOLUTION
DAVIDE, JR., C .J p:
The solemnization of a marriage between two
contracting parties who were both bound by a
prior existing marriage is the bone of contention
of the instant complaint against respondent Judge
Roque R. Sanchez, Municipal Trial Court, Infanta,
Pangasinan. For this act, complainant Herminia
Borja-Manzano charges respondent Judge with
gross ignorance of the law in a sworn ComplaintAffidavit filed with the Office of the Court
Administrator on 12 May 1999. ICcDaA
Complainant avers that she was the lawful wife of
the late David Manzano, having been married to
him on 21 May 1966 in San Gabriel Archangel
Parish, Araneta Avenue, Caloocan City. 1 Four
children were born out of that marriage. 2 On 22
March 1993, however, her husband contracted
another marriage with one Luzviminda Payao
before respondent Judge. 3 When respondent
Judge solemnized said marriage, he knew or
ought to know that the same was void and
bigamous, as the marriage contract clearly stated
that both contracting parties were "separated."
Respondent Judge, on the other hand, claims in
his Comment that when he officiated the
marriage between Manzano and Payao he did not
know that Manzano was legally married. What he
knew was that the two had been living together
as husband and wife for seven years already
without the benefit of marriage, as manifested in
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their joint affidavit. 4 According to him, had he

known that the late Manzano was married, he
would have advised the latter not to marry again;
otherwise, he (Manzano) could be charged with
bigamy. He then prayed that the complaint be
dismissed for lack of merit and for being designed
merely to harass him.
After an evaluation of the Complaint and the
Comment, the Court Administrator recommended
that respondent Judge be found guilty of gross
ignorance of the law and be ordered to pay a fine
of P2,000, with a warning that a repetition of the
same or similar act would be dealt with more
severely.
On 25 October 2000, this Court required the
parties to manifest whether they were willing to
submit the case for resolution on the basis of the
pleadings thus filed. Complainant answered in the
affirmative.
For his part, respondent Judge filed a
Manifestation reiterating his plea for the dismissal
of the complaint and setting aside his earlier
Comment. He therein invites the attention of the
Court to two separate affidavits 5 of the late
Manzano and of Payao, which were allegedly
unearthed by a member of his staff upon his
instruction. In those affidavits, both David
Manzano and Luzviminda Payao expressly stated
that they were married to Herminia Borja and
Domingo Relos, respectively; and that since their
respective marriages had been marked by
constant quarrels, they had both left their
families
and
had
never
cohabited
or
communicated with their spouses anymore.
Respondent Judge alleges that on the basis of
those affidavits, he agreed to solemnize the
marriage in question in accordance with Article
34 of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of
a man and a woman who have lived together as
husband and wife for at least five years and
without any legal impediment to marry each
other. The contracting parties shall state the
foregoing facts in an affidavit before any person
authorized by law to administer oaths. The
solemnizing officer shall also state under oath
that he ascertained the qualifications of the
contracting
parties
and
found
no
legal
impediment to the marriage. HACaSc

For this provision on legal ratification of marital

cohabitation to apply, the following requisites
must concur:
1.The man and woman must have been living
together as husband and wife for at least five
years before the marriage;
2.The parties must have no legal impediment to
marry each other;
3.The fact of absence of legal impediment
between the parties must be present at the time
of marriage;
4.The parties must execute an affidavit stating
that they have lived together for at least five
years [and are without legal impediment to marry
each other]; and
5.The solemnizing officer must execute a sworn
statement that he had ascertained the
qualifications of the parties and that he had found
no legal impediment to their marriage. 6
Not all of these requirements are present in the
case at bar. It is significant to note that in their
separate affidavits executed on 22 March 1993
and sworn to before respondent Judge himself,
David Manzano and Luzviminda Payao expressly
stated the fact of their prior existing marriage.
Also, in their marriage contract, it was indicated
that both were "separated."
Respondent Judge knew or ought to know that a
subsisting previous marriage is a dirimant
impediment, which would make the subsequent
marriage null and void. 7 In fact, in his Comment,
he stated that had he known that the late
Manzano was married he would have discouraged
him from contracting another marriage. And
respondent Judge cannot deny knowledge of
Manzano's and Payao's subsisting previous
marriage, as the same was clearly stated in their
separate affidavits which were subscribed and
sworn to before him.
The fact that Manzano and Payao had been living
apart from their respective spouses for a long
time already is immaterial. Article 63(1) of the
Family Code allows spouses who have obtained a
decree of legal separation to live separately from
each other, but in such a case the marriage
bonds are not severed. Elsewise stated, legal
separation does not dissolve the marriage tie,
much less authorize the parties to remarry. This
holds true all the more when the separation is
merely de facto, as in the case at bar. HIaTCc

7|Family

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cases

Neither can respondent Judge take refuge on the

Joint Affidavit of David Manzano and Luzviminda
Payao stating that they had been cohabiting as
husband and wife for seven years. Just like
separation, free and voluntary cohabitation with
another person for at least five years does not
severe the tie of a subsisting previous marriage.
Marital cohabitation for a long period of time
between two individuals who are legally
capacitated to marry each other is merely a
ground for exemption from marriage license. It
could not serve as a justification for respondent
Judge to solemnize a subsequent marriage
vitiated by the impediment of a prior existing
marriage.
Clearly, respondent Judge demonstrated gross
ignorance of the law when he solemnized a void
and bigamous marriage. The maxim "ignorance
of the law excuses no one" has special
application to judges, 8 who, under Rule 1.01 of
the Code of Judicial Conduct, should be the
embodiment of competence, integrity, and
independence. It is highly imperative that judges
be conversant with the law and basic legal
principles. 9 And when the law transgressed is
simple and elementary, the failure to know it
constitutes gross ignorance of the law. 10
ACCORDINGLY, the recommendation of the Court
Administrator is hereby ADOPTED, with the
MODIFICATION that the amount of fine to be
imposed upon respondent Judge Roque Sanchez
is increased to P20,000.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ.,
concur.
EN BANC
[A.M. No. MTJ-92-721. September 30, 1994.]
JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON
C. SAMBO, and APOLLO A. VILLAMORA,
complainants, vs. HON. LUCIO P. PALAYPAYON,
JR., Presiding Judge, and NELIA B. ESMERALDABAROY, Clerk of Court II, both of the Municipal
Trial Court of Tinambac, Camarines Sur,
respondents.
SYLLABUS
1.JUDICIAL ETHICS; JUDGES; SOLEMNIZATION OF
MARRIAGE WITHOUT A MARRIAGE LICENSE AND
FAILURE TO SUPERVISE HIS CLERK OF COURT IN
THE PREPARATION OF MONTHLY REPORT OF
CASES CONSTITUTE MISCONDUCT; PENALTY;
CASE AT BAR. In view of the findings that the
evidence
presented
by
the
complainants

sufficiently show that respondent Judge Lucio P.

Palaypayon, Jr. had solemnized marriages,
particularly that of Sammy Bocaya and Gina
Besmonte, without a marriage license, and that it
having been shown that he did not comply with
his duty in closely supervising his clerk of court in
the preparation of the monthly report of cases
being submitted to the Supreme Court,
particularly for the months of July and September,
1992 where it has been proven that the reports
for said two (2) months were falsified with respect
to the number of documents notarized, it is
respectfully recommended that he be imposed a
fine of TEN THOUSAND (10,000.00) PESOS with a
warning that the same or similar offenses will be
more severely dealt with. The fact that Judge
Palaypayon did not sign the marriage contracts or
certificates of those marriages he solemnized
without a marriage license, there were no dates
placed in the marriage contracts to show when
they were solemnized, the contracting parties
were not furnished their marriage contracts and
the Local Civil Registrar was not being sent any
copy of the marriage contract, will not absolve
him from liability. By solemnizing alone a
marriage without a marriage license he as the
solemnizing officer is the one responsible for the
irregularity in not complying (with) the formal
requ(i)sites of marriage and under Article 4(3) of
the Family Code of the Philippines, he shall be
civilly, criminally and administratively liable.
Judge Palaypayon is likewise liable for his
negligence or failure to comply with his duty of
closely supervising his clerk of court in the
performance of the latter's duties and functions,
particularly the preparation of the monthly report
of cases (Bendesula vs. Laya, 58 SCRA 16). His
explanation that he only signed the monthly
report of cases only when his clerk of court
already signed the same, cannot be accepted. It
is his duty to closely supervise her, to check and
verify the records if the monthly reports prepared
by his clerk of court do not contain false
statements. It was held that A judge cannot take
refuge behind the inefficiency or incompetence of
court personnel (Nidua vs. Lazaro, 174 SCRA
158). The recommendation with respect to the
administrative sanction to be imposed on
respondent judge should, therefore, be modified.
For one, with respect to the charge of illegal
solemnization of marriages, it does appear that
he had not taken to heart, but actually trifled
with, the law's concern for the institution of
marriage and the legal effects flowing from civil
status. This, and his undeniable participation in
the other offenses charged as hereinbefore
narrated in detail, approximate such serious
degree of misconduct and of gross negligence in
the performance of judicial duties as to ineludibly
require a higher penalty. WHEREFORE, the Court
8|Family

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hereby imposes a FINE of P20,000.00 on

respondent Judge Lucio P. Palaypayon, Jr., with a
stern warning that any repetition of the same or
similar offenses in the future will definitely be
severely dealt with.
2.CONSTITUTIONAL LAW; SUPREME COURT;
ADMINISTRATIVE SUPERVISION OVER COURT
PERSONNEL; CLERK OF COURT; FALSIFICATION OF
MONTHLY REPORT OF CASES AND OTHER
SERIOUS MISCONDUCT IN OFFICE; SANCTION;
CASE AT BAR. In view also of the finding that
respondent Nelia Esmeralda-Baroy, the clerk of
court of the Municipal Trial Court of Tinambac,
Camarines Sur, has been found to have falsified
the monthly report of cases for the months of July
and September, 1992 with respect to the number
of documents notarized, for having failed to
account (for) the notarial fees she received for
said two (2) months period; for having failed to
account (for) the solemnization fees of those
marriages allegedly not solemnized, but the
solemnization fees were not returned; for
unauthorized issuance of temporary receipts,
some of which were issued unnumbered; for
receiving the cash bond of Dacara on October 29,
1991 in the amount of One Thousand (P1,000.00)
Pesos for which she issued only a temporary
receipt (Exh. Y) and for depositing it with the
Land Bank of the Philippines only on March 26,
1993, or after one year and five months in her
possession and after this case was already filed;
for withdrawing said cash bond of One Thousand
(P1,000.00) Pesos on April 29, 1993 without any
court order or authority and redepositing it only
on July 23, 1993; for receiving a cash bond of
Three Thousand (P3,000.00) Pesos from Alfredo
Seprones in Crim. Case No. 5180, MTC, Tinambac,
Camarines Sur, for which she issued only an
unnumbered temporary receipt (Exhs. X and X-1)
and for not depositing it with a bank or with the
Municipal Treasurer until it was ordered released;
and for requiring the Rural Bank of Tinambac,
Camarines Sur to pay filing fees on February 4,
1992 for collection cases filed against farmers in
the amount of Four Hundred (P400.00) Pesos, but
turning over said amount to the Municipal
Treasurer only on March 12, 1992, it is
respectfully recommended that said respondent
clerk of court Nelia Esmeralda-Baroy be dismissed
from the service. Respondent Baroy had either
failed to comply with the Revised Manual of
Instructions for Treasurers, Sec. 183, 184 and
626; p. 127, Manual for Clerks of Court, DOJ
Circular No. 52, 26 April 1968; p. 136, Manual for
Clerks of Court, and Supreme Court Memorandum
Circular No. 5, 25 November 1982, or deliberately
disregarded, or even intentionally violated them.
By her conduct, she demonstrated her callous
unconcern for the obligations and responsibility of
her duties and functions as a clerk of court and

accountable officer. The gross neglect of her

duties shown by her constitute(s) a serious
misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma
Hiam, Clerk of Court, MTCC, Branch I, Batangas
City; A.M. No. P-90-414; August 9, 1993, it was
held that "The clerk of court is not authorized to
keep funds in his/her custody; monies received by
him/her shall be deposited immediately upon
receipt thereof with the City, Municipal or
Provincial Treasurer. Supreme Court Circular Nos.
5 dated November 25, 1982 and 5-A dated
December 3, 1982. Respondent Hiam's failure to
remit the cash bail bonds and fine she collected
constitutes
serious
misconduct
and
her
misappropriation of said funds constitutes
dishonesty. Respondent Norma Hiam was found
guilty of dishonesty and serious misconduct
prejudicial to the best interest of the service and
(the Court) ordered her immediate dismissal
(from) the service. Respondent Nelia EsmeraldaBaroy is hereby DISMISSED from service, with
forfeiture of all retirement benefits and with
prejudice to employment in any branch, agency
or instrumentality of the Government, including
government-owned or controlled corporations.
3.ID.; COURTS; EVERYONE CONNECTED WITH AN
OFFICE CHARGED WITH THE ADMINISTRATION OF
JUSTICE SHOULD BE CIRCUMSCRIBED WITH THE
HEAVY BURDEN OF RESPONSIBILITY. We here
emphasize once again our adjuration that the
conduct and behavior of everyone connected with
an office charged with the dispensation of justice,
from the presiding judge to the lowliest clerk,
should be circumscribed with the heavy burden of
responsibility. His conduct, at all times, must not
only be characterized by propriety and decorum
but, above all else, must be beyond suspicion.
Every employee should be an example of
integrity, uprightness and honesty. Integrity in a
judicial office is more than a virtue, it is a
necessity. It applies, without qualification as to
rank or position, from the judge to the least of its
personnel, they being standard-bearers of the
exacting norms of ethics and morality imposed
upon a Court of justice.
4.CIVIL
LAW;
FAMILY
CODE;
MARRIAGE;
LIABILITIES OF PARTIES IN THE IRREGULARITIES IN
THE FORMAL REQUISITES THEREOF. On the
charge regarding illegal marriages the Family
Code pertinently provides that the formal
requisites of marriage are, inter alia, a valid
marriage license except in the cases provided for
therein. Complementarily, it declares that the
absence of any of the essential or formal
requisites shall generally render the marriage
void ab initio and that, while an irregularity in the
formal requisites shall not affect the validity of
the marriage, the party or parties responsible for
the irregularity shall be civilly, criminally and
9|Family

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administratively liable. The civil aspect is

addressed to the contracting parties and those
affected by the illegal marriages, and what we
are providing for herein pertains to the
administrative liability of respondents, all without
prejudice to their criminal responsibility. The
Revised Penal Code provides that "(p)riests or
ministers of any religious denomination or sect,
or civil authorities who shall perform or authorize
any illegal marriage ceremony shall be punished
in accordance with the provisions of the Marriage
Law." This is of course, within the province of the
prosecutorial agencies of the Government.
DECISION
PER CURIAM p:
Complainants Juvy N. Cosca, Edmundo B. Peralta,
Ramon C. Sambo, and Apollo Villamora, are
Stenographer I, Interpreter I, Clerk II, and Process
Server, respectively, of the Municipal Trial Court
of Tinambac, Camarines Sur. Respondents Judge
Lucio P. Palaypayon, Jr. and Nelia B. EsmeraldaBaroy are respectively the Presiding Judge and
Clerk of Court II of the same court.
In an administrative complaint filed with the
Office of the Court Administrator on October 5,
1992, herein respondents were charged with the
following offenses, to wit: (1) illegal solemnization
of marriage; (2) falsification of the monthly
reports of cases; (3) bribery in consideration of an
appointment in the court; (4) non-issuance of
receipt for cash bond received; (5) infidelity in the
custody of detained prisoners; and (6) requiring
payment of filing fees from exempted entities. 1
Pursuant to a resolution issued by this Court
respondents filed their respective Comments.3
The case was thereafter referred to Executive
Judge David C. Naval of the Regional Trial Court,
Naga
City,
for
investigation
report
and
recommendation. The case was however
transferred to First Assistant Executive Judge
Antonio N. Gerona when Judge Naval inhibited
himself for the reason that his wife is a cousin of
respondent Judge Palaypayon, Jr. 4
The contending versions of the parties regarding
the factual antecedents of this administrative
matter, as culled from the records thereof, are set
out under each particular charge against
respondents. prcd
1.Illegal solemnization of marriage
Complainants allege that respondent judge
solemnized marriages even without the requisite
marriage license. Thus, the following couples
were able to get married by the simple expedient
of paying the marriage fees to respondent Baroy,
despite the absence of a marriage license. viz.:
Alano P. Abellano and Nelly Edralin, Francisco
Selpo and Julieta Carrido, Eddie Terrobias and

Maria Gacer, Renato Gamay and Maricris Belga,

Arsenio Sabater and Margarita Nacario, and
Sammy Bocaya and Gina Bismonte. As a
consequence, their marriage contracts (Exhibits
B, C, D, F, G, and A, respectively) did not reflect
any marriage license number. In addition,
respondent judge did not sign their marriage
contracts and did not indicate the date of
solemnization, the reason being that he allegedly
had to wait for the marriage license to be
submitted by the parties which was usually
several days after the ceremony. Indubitably, the
marriage contracts were not filed with the local
civil registrar. Complainant Ramon Sambo, who
prepares the marriage contracts, called the
attention of respondents to the lack of marriage
licenses and its effect on the marriages involved,
but the latter opted to proceed with the
celebration of said marriages.
Respondent Nelia Baroy claims that when she
was appointed Clerk of Court II, the employees of
the court were already hostile to her, especially
complainant Ramon Sambo who told her that he
was filing a protest against her appointment. She
avers that it was only lately when she discovered
that the court had a Marriage Register which is in
the custody of Sambo; that it was Sambo who
failed to furnish the parties copies of the
marriage contract and to register these with the
local civil registrar; and that apparently Sambo
kept these marriage contracts in preparation for
this administrative case. Complainant Sambo,
however, claims that all file copies of the
marriage contracts were kept by respondent
Baroy; but the latter insists that she had
instructed Sambo to follow up the submission by
the contracting parties of their marriage licenses
as part of his duties but he failed to do so.
Respondent Judge Palaypayon, Jr. contends that
the marriage between Alano P. Abellano and Nelly
Edralin falls under Article 34 of the Civil Code,
hence it is exempt from the marriage license
requirement; that he gave strict instructions to
complainant Sambo to furnish the couple a copy
of the marriage contract and to file the same with
the civil registrar, but the latter failed to do so;
that in order to solve the problem, the spouses
subsequently formalized their marriage by
securing a marriage license and executing their
marriage contract, a copy of which was filed with
the civil registrar; that the other five marriages
alluded to in the administrative complaint were
not illegally solemnized because the marriage
contracts were not signed by him and they did
not contain the date and place of marriage; that
copies of these marriage contracts are in the
custody of complainant Sambo; that the alleged
marriage of Francisco Selpo and Julieta Carrido,
Eddie Terrobias ande Maria Emma Gaor, Renato
Gamay and Maricris Belga, and of Arsenio
10 | F a m i l y

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cases

Sabater and Margarita Nacario were not

celebrated by him since he refused to solemnize
them in the absence of a marriage license; that
the marriage of Samy Bocaya and Gina Bismonte
was celebrated even without the requisite license
due to the insistence of the parties in order to
avoid embarrassment to their guests but that, at
any rate, he did not sign their marriage contract
which remains unsigned up to the present. LLpr
2.Falsification of monthly report for July, 1991
regarding the number of marriages solemnized
and the number of documents notarized.
It is alleged that respondent judge made it
appear that he solemnized seven (7) marriages in
the month of July, 1992, when in truth he did not
do so or at most those marriages were null and
void; that respondents likewise made it appear
that they have notarized only six (6) documents
for July, 1992, but the Notarial Register will show
that there were one hundred thirteen (113)
documents which were notarized during that
month; and that respondents reported a notarial
fee of only P18.50 for each document, although in
fact they collected P20.00 therefor and failed to
account for the difference.
Respondent Baroy contends, however, that the
marriage registry where all marriages celebrated
by respondent judge are entered is under the
exclusive control and custody of complainant
Ramon Sambo, hence he is the only one who
should be held responsible for the entries made
therein; that the reported marriages are merely
based on the payments made as solemnization
fees which are in the custody of respondent
Baroy. She further avers that it is Sambo who is
likewise the custodian of the Notarial Register;
that she cannot be held accountable for whatever
alleged difference there is in the notarial fees
because she is liable only for those payments
tendered to her by Sambo himself; that the
notarial fees she collects are duly covered by
receipts; that of the P20.00 charged, P18.50 is
remitted directly to the Supreme Court as part of
the Judiciary Development Fund and P150 goes to
the general fund of the Supreme Court which is
paid to the Municipal Treasurer of Tinambac,
Camarines Sur. Respondent theorizes that the
discrepancies in the monthly report were
manipulated by complainant Sambo considering
that he is the one in charge of the preparation of
the monthly report.
Respondent Judge Palaypayon avers that the
erroneous number of marriages celebrated was
intentionally placed by complainant Sambo; that
the number of marriages solemnized should not
be based on solemnization fees paid for that
month since not all the marriages paid for are
solemnized in the same month. He claims that
there were actually only six (6) documents
notarized in the month of July, 1992 which tallied

with the official receipts issued by the clerk of

court; that it is Sambo who should be held
accountable for any unreceipted payment for
notarial fees because he is the one in charge of
the Notarial Register; and that this case filed by
complainant Sambo is merely in retaliation for his
failure to be appointed as the clerk of court.
Furthermore, respondent judge contends that he
is not the one supervising or preparing the
monthly report, and that he merely has the
ministerial duty to sign the same. llcd
3.Bribery in consideration of an appointment in
the court
Complainants allege that because of the
retirement of the clerk of court, respondent judge
forwarded to the Supreme Court the applications
of Rodel Abogado, Ramon Sambo, and Jessell
Abiog. However, they were surprised when
respondent Baroy reported for duty as clerk of
court on October 21, 1991. They later found out
that respondent Baroy was the one appointed
because she gave a brand-new air-conditioning
unit to respondent judge.
Respondent Baroy claims that when she was still
in Naga City she purchased an air-conditioning
unit but when she was appointed clerk of court
she had to transfer to Tinambac and, since she no
longer needed the air conditioner, she decided to
sell the same to respondent judge. The
installation and use thereof by the latter in his
office was with the consent of the Mayor of
Tinambac.
Respondent judge contends that he endorsed all
the applications for the position of clerk of court
to the Supreme Court which has the sole
authority over such appointments and that he
had no hand in the appointment of respondent
Baroy. He contends that the air-conditioning unit
was bought from his co-respondent on
installment basis on May 29, 1992, eight (8)
months after Baroy had been appointed clerk of
court. He claims that he would not be that naive
to exhibit to the public as item which could not be
defended as a matter of honor and prestige.
4.Cash bond issued without a receipt
It is alleged that in Criminal Case No. 5438,
entitled
"People
vs.
Mendeza,
et
al.,
"bondswoman Januaria Decara was allowed by
respondent judge to change her property bond to
cash bond; that she paid the amount of P1,000.00
but was never issued a receipt therefor nor was it
made to appear in the records that the bond has
been paid; that despite the lapse of two years,
the money was never returned to the
bondswoman; and that it has not been shown
that the money was turned over to the Municipal
Treasurer of Tinambac.
Respondent Baroy counters that the cash bond
was deposited with the former clerk of court, then
turned over to the acting clerk of court and, later,
11 | F a m i l y

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given to her under a corresponding receipt; that

the cash bond is deposited with the bank; and
that should the bondswoman desire to withdraw
the same, she should follow the proper procedure
therefor.
Respondent judge contends that Criminal Case
No. 5438 was archived for failure of the
bondsman to deliver the body of the accused in
court despite notice; and that he has nothing to
do with the payment of the cash bond as this is
the duty of the clerk of court.
5.Infidelity in the custody of prisoners
Complainants contend that respondent judge
usually got detention prisoners to work in his
house, one of whom was Alex Alano, who is
accused in Criminal Case No. 5647 for violation of
the Dangerous Drugs Act; that while Alano was in
the custody of respondent judge, the former
escaped and was never recaptured; that in order
to conceal this fact, the case was archived
pursuant to an order issued by respondent judge
dated April 6, 1992. LLpr
Respondent judge denied the accusation and
claims that he never employed detention
prisoners and that he has adequate household
help; and that he had to order the case archived
because it had been pending for more than six (6)
months and the accused therein remained at
large.
6.Unlawful collection of docket fees
Finally, respondents are charged with collecting
docket fees from the Rural Bank of Tinambac,
Camarines Sur, Inc. although such entity is
exempt by law from the payment of said fees,
and that while the corresponding receipt was
issued, respondent Baroy failed to remit the
amount to the Supreme Court and, instead, she
deposited the same in her personal account.
Respondent Baroy contends that is was JudgeDesignate
Felimon
Montenegro
(because
respondent judge was on sick leave) who
instructed her to demand payment of docket fees
from said rural bank; that the bank issued a
check for P800.00; that she was not allowed by
the Philippine National Bank to encash the check
and, instead, was instructed to deposit the same
in any bank account for clearing; that respondent
deposited the same in her account; and that after
the check was cleared, she remitted P400.00 to
the Supreme Court and the other P400.00 was
paid to the Municipal Treasurer of Tinambac.
On the basis of the foregoing contentions, First
Vice-Executive Judge Antonio N. Gerona prepared
and
submitted
to
us
his
Report
and
Recommendations dated May 20, 1994, together
with the administrative matter. We have
perspicaciously reviewed the same and we are
favorably impressed by the thorough and
exhaustive presentation and analysis of the facts

and evidence in said report. We commend the

investigating judge for his industry and
perspicacity reflected by his findings in said
report which, being amply substantiated by the
evidence and supported by logical illations, we
hereby approve and hereunder reproduce at
length the material portions thereof.
xxx xxx xxx
The first charge against the respondents is illegal
solemnization of marriage. Judge Palaypayon is
charged with having solemnized without a
marriage license the marriage of Sammy Bocaya
and Gina Besmonte (Exh. A). Alano Abellano and
Nelly Edralin (Exh. B), Francisco Selpo and Julieta
Carrido (Exh. C), Eddie Terrobias and Maria Emma
Gaor (Exh. D), Renato Gamay and Maricris Belga
(Exh. F) and Arsenio Sabater and Margarita
Nacario (Exh. G).
In all these aforementioned marriages, the black
space in the marriage contracts to show the
number of the marriage was solemnized as
required by Article 22 of the Family Code were
not filled up. While the contracting parties and
their witnesses signed their marriage contracts,
Judge Palaypayon did not affix his signature in the
marriage contracts, except that of Abellano and
Edralin when Judge Palaypayon signed their
marriage certificate as he claims that he
solemnized this marriage under Article 34 of the
Family Code of the Philippines. In said marriages
the contracting parties were not furnished a copy
of their marriage contract and the Local Civil
Registrar was not sent either a copy of the
marriage certificate as required by Article 23 of
the Family Code.
The marriage of Bocaya and Besmonte is shown
to have been solemnized by Judge Palaypayon
without a marriage license. The testimonies of
Bocay himself and Pompeo Ariola, one of the
witnesses of the marriage of Bocaya and
Besmonte, and the photographs taken when
Judge Palaypayon solemnized their marriage
(Exhs. K-3 to K-9) sufficiently show that Judge
Palaypayon really solemnized their marriage.
Bocaya declared that they were advised by Judge
Palaypayon to return after ten (10) days after
their marriage was solemnized and bring with
them their marriage license. In the meantime,
they already started living together as husband
and wife believing that the formal requisites of
marriage were complied with.
Judge Palaypayon denied that he solemnized the
marriage of Bocaya and Besmonte because the
parties allegedly did not have a marriage license.
He declared that in fact he did not sign the
marriage certificate, there was no date stated on
it and both the parties and the Local Civil
Registrar did not have a copy of the marriage
certificate.
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With respect to the photographs which show that

he solemnized the marriage of Bocaya and
Besmonte, Judge Palaypayon explains that they
merely show as if he was solemnizing the
marriage.
It
was
actually
a
simulated
solemnization of marriage and not a real one.
This happened because of the pleading of the
mother of one of the contracting parties that he
consent to be photographed to show that as if he
was solemnizing the marriage as he was told that
the food for the wedding reception was already
prepared, visitors were already invited and the
place of the parties where the reception would be
held was more than twenty (20) kilometers away
from the poblacion of Tinambac.
The denial made by Judge Palaypayon is difficult
to believe. The fact alone that he did not sign the
marriage certificate or contract, the same did not
bear a date and the parties and the Local Civil
Registrar were not furnished a copy of the
marriage certificate, do not by themselves show
that he did not solemnize the marriage. His
uncorroborated testimony cannot prevail over the
testimony of Bocaya and Ariola who also
declared, among others, that Bocaya and his
bride were advised by Judge Palaypayon to return
after ten (10) days with their marriage license
and whose credibility had not been impeached.
The pictures taken also from the start of the
wedding ceremony up to the signing of the
marriage certificate in front of Judge Palaypayon
and on his table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K4, K-4-a, K-4-b, K-4-c, K-4-d, K-5, K-5-a, K-5-b, K-6,
K-7, K-8, K-8-a and K-9), cannot possibly be just to
show a simulated solemnization of marriage. One
or two pictures may convince a person of the
explanation of Judge Palaypayon, but not all those
pictures.
Besides, as a judge it is very difficult to believe
that Judge Palaypayon would allows himself to be
photographed as if he was solemnizing a
marriage on a mere pleading of a person whom
he did not even know for the alleged reasons
given. It would be highly improper and
unbecoming of him to allow himself to be used as
an instrument of deceit by making it appear that
Bocaya and Besmonte were married by him when
in truth and in fact he did not solemnize their
marriage.
With respect to the marriage of Abellano and
Edralin (Exh. B), Judge Palaypayon admitted that
he solemnized their marriage, but he claims that
it was under Article 34 of the Family Code, so a
marriage license was not required. The
contracting parties here executed a joint affidavit
that they have been living together as husband
and wife for almost six (6) years already (Exh. 12;
Exh. AA).
In their marriage contract which did not bear any
date either when it was solemnized, it was stated

that Abellano was only eighteen (18) years, two

(2) months and seven (7) days old. If he and
Edralin had been living together as husband and
wife for almost six (6) years already before they
got married as they stated in their joint affidavit,
Abellano must ha(ve) been less than thirteen (13)
years old when he started living with Edralin as
his wife and this is hard to believe. Judge
Palaypayon should ha(ve) been aware of this
when he solemnized their marriage as it was his
duty to ascertain the qualification of the
contracting parties who might ha(ve) executed a
false joint affidavit in order to have an instant
marriage by avoiding the marriage license
requirement.
On May 23, 1992, however, after this case was
already filed, Judge Palaypayon married again
Abellano and Edralin, this time with a marriage
license (Exh. BB). The explanation given by Judge
Palaypayon why he solemnized the marriage of
the same couple for the second time is that he
did not consider the first marriage he solemnized
under Article 34 of the Family Code as (a)
marriage at all because complainant Ramon
Sambo did not follow his instruction that the date
should be placed in the marriage certificate to
show when he solemnized the marriage and that
the contracting parties were not furnished a copy
of their marriage certificate.
This act of Judge Palaypayon of solemnizing the
marriage of Abellano and Edralin for the second
time with a marriage license already only gave
rise to the suspicion that the first time he
solemnized the marriage it was only made to
appear that it was solemnized under exceptional
character as there was not marriage license and
Judge Palaypayon had already signed the
marriage certificate. If it was true that he
solemnized the first marriage under exceptional
character where a marriage license was not
required, why did he already require the parties
to have a marriage license when he solemnized
their marriage for the second time?
The explanation of Judge Palaypayon that the first
marriage of Abellano and Edralin was not a
marriage at all as the marriage certificate did not
state the date when the marriage was solemnized
and that the contracting parties were not
furnished a copy of their marriage certificate, is
not well taken as they are not any of those
grounds under Article(s) 35, 36, 37 and 38 of the
Family Code which declare a marriage void from
the beginning. Even if no one, however, received
a copy of the marriage certificate, the marriage is
still valid (Jones vs. H(o)rtiguela, 64 Phil. 179).
Judge Palaypayon cannot just absolve himself
from responsibility by blaming his personnel.
They are not the guardian(s) of this official
function and under Article 23 of the Family Code
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it is his duty to furnish the contracting parties (a)

copy of their marriage contract.
With respect to the marriage of Francisco Selpo
and Julieta Carrido (Exh. C), and Arsenio Sabater
and Margarita Nacario (Exh. G), Selpo and Carrido
and Sabater and Nacario executed joint affidavits
that Judge Palaypayon did not solemnize their
marriage (Exh. 13-A and Exh. 1). Both Carrido and
Nacario testified for the respondents that actually
Judge Palaypayon did not solemnize their
marriage as they did not have a marriage license.
On cross-examination, however, both admitted
that they did not know who prepared their
affidavits. They were just told, Carrido by a
certain Charito Palaypayon, and Nacario by a
certain Kagawad Encinas, to just go to the
Municipal building and sign their joint affidavits
there which were already prepared before the
Municipal Mayor of Tinambac, Camarines Sur.
With respect to the marriage of Renato Gamay
and Maricris Belga (Exh. f), their marriage
contract was signed by them and by their two (2)
witnesses, Atty. Elmer Brioso and respondent
Baroy (Exhs. F-1 and F-2). Like the other
aforementioned marriages, the solemnization fee
was also paid as shown by a receipt dated June 7,
1992 and signed by respondent Baroy (Exh. F-4).
Judge Palaypayon also denied having solemnized
the marriage of Gamay and Belga allegedly
because there was no marriage license. On her
part, respondent Baroy at first denied that the
marriage was solemnized. When she was asked,
however, why did she sign the marriage contract
as a witness she answered that she thought the
marriage was already solemnized (TSN, p. 14; 1028-93).
Respondent Baroy was, and is, the clerk of court
of Judge Palaypayon. She signed the marriage
contract of Gamay and Belga as one of the two
principal sponsors. Yet, she wanted to give the
impression that she did not even know that the
marriage was solemnized by Judge Palaypayon.
This is found very difficult to believe.
Judge Palaypayon made the same denial of
having solemnized also the marriage of Terrobias
and Gaor (Exh. D). The contracting parties and
their witnesses also signed the marriage contract
and paid the solemnization fee, but Judge
Palaypayon allegedly did not solemnize their
marriage due to lack of marriage license. Judge
Palaypayon submitted the affidavit of William
Medina, Vice-Mayor of Tinambac, to corroborate
his testimony (Exh. 14). Medina, however, did not
testify in this case and so his affidavit has no
probative value.
Judge Palaypayon testified that his procedure and
practice have been that before the contracting
parties and their witnesses enter his chamber in
order to get married, he already required

complainant Ramon Sambo to whom he assigned

the task of preparing the marriage contract, to
already let the parties and their witnesses sign
their marriage contracts, as what happened to
Gamay and Belga, and Terrobias and Gaor,
among others. His purpose was to save his
precious time as he has been solemnizing
marriages at the rate of three (3) to four (4) times
everyday (TSN, p. 12; 2-1-94).
This alleged practice and procedure, if true, is
highly improper and irregular, if not illegal,
because the contracting parties are supposed to
be first asked by the solemnizing officer and
declare that they take each other as husband and
wife before the solemnizing officer in the
presence of at least two (2) witnesses before they
are supposed to sign their marriage contracts
(Art. 6, Family Code).
The uncorroborated testimony, however, of Judge
Palaypayon as to his alleged practice and
procedure before solemnizing a marriage, is not
true as shown by the picture taken during the
wedding of Bocaya and Besmonte (Exhs. K-3 to K9) and by the testimony of respondent Baroy
herself who declared that the practice of Judge
Palaypayon ha(s) been to let the contracting
parties and their witnesses sign the marriage
contract only after Judge Palaypayon has
solemnized their marriage (TSN, p. 53; 10-28-93).
Judge Palaypayon did not present any evidence to
show also that he was really solemnizing three (3)
to four (4) marriages everyday. On the contrary
his monthly report of cases for July, 1992 shows
that his court had only twenty-seven (27) pending
cases and he solemnized only seven (7)
marriages for the whole month (Exh. E). His
monthly report of cases for September, 1992
shows also that he solemnized only four (4)
marriages during the whole month (Exh. 7).
In this first charge of having illegally solemnized
marriages, respondent Judge Palaypayon has
presented and marked in evidence several
marriage contracts of other persons, affidavits of
persons and certification issued by the Local Civil
Registrar (Exhs. 12-B to 12-H). These persons
who executed affidavits, however, did not testify
in this case. Besides, the marriage contracts and
certification mentioned are immaterial as Judge
Palaypayon is not charged of having solemnized
these marriages illegally also. He is not charged
that the marriages he solemnized were all illegal.
The second charge against herein respondents,
that of having falsified the monthly report of
cases submitted to the Supreme Court and not
stating in the monthly report the actual number
of documents notarized and issuing the
corresponding receipts of the notarial fees, have
been sufficiently proven by the complainants
insofar as the monthly report of cases for July and
September, 1992 are concerned.
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The monthly report of cases of the MTC of

Tinambac, Camarines Sur for July, 1992 both
signed by the respondents, show that for said
month there were six (6) documents notarized by
Judge Palaypayon in his capacity as Ex-Officio
Notary Public (Exhs. H to H-1-b). The notarial
register of the MTC of Tinambac, Camarines Sur,
however, shows that there were actually one
hundred thirteen (113) documents notarized by
Judge Palaypayon for the said month (Exhs. Q to
Q-45).
Judge Palaypayon claims that there was no
falsification of the monthly report of cases for
July, 1992 because there were only six (6)
notarized documents that were paid (for) as
shown by official receipts. He did not, however,
present evidence of the alleged official receipts
showing that the notarial fee for the six (6)
documents were paid. Besides, the monthly
report of cases with respect to the number of
documents notarized should not be based on how
many notarized documents were paid of the
notarial fees, but the number of documents
placed or recorded in the notarial register.
Judge Palaypayon admitted that he was not
personally verifying and checking anymore the
correctness of the monthly reports because he
relies on his co-respondent who is the Clerk of
Court and whom he has assumed to have
checked and verified the records. He merely signs
the monthly report when it is already signed by
respondent Baroy.
The explanation of Judge Palaypayon is not well
taken because he is required to have close
supervision in the preparation of the monthly
report of cases of which he certifies as to their
correctness. As a judge he is personally
responsible for the proper discharge of his
functions (The Phil. Trial Lawyer's Asso. Inc. vs.
Agana, Sr., 102 SCRA 517). In Nidera vs. Lazaro,
174 SCRA 581, it was held that "A judge cannot
take
refuge
behind
the
inefficiency
or
mismanagement of his court personnel."
On the part of respondent Baroy, she puts the
blame of the falsification of the monthly report of
cases on complainant Sambo whom she allegedly
assigned to prepare not only the monthly report
of cases, but the preparation and custody of
marriage contracts, notarized documents and the
notarial register. By her own admission she has
assigned to complainant Sambo duties she was
supposed to perform, yet according to her she
never bother(ed) to check the notarial register of
the court to find out the number of documents
notarized in a month (TSN, p. 30; 11-23-93).
Assuming that respondent Baroy assigned the
preparation of the monthly report of cases to
Sambo, which was denied by the latter as he
claims that he only typed the monthly report
based on the data given to him by her, still it is

her duty to verify and check whether the report is

correct.
The explanation of respondent Baroy that Sambo
was the one in custody of marriage contracts,
notarized documents and notarial register,
among other things, is not acceptable not only
because as clerk of court she was supposed to be
in custody, control and supervision of all court
records including documents and other properties
of the court (p. 32, Manual for Clerks of Court),
but she herself admitted that from January, 1992
she was already in full control of all the records of
the court including receipts (TSN, p. 11; 11-2393).
The evidence adduced in this case in connection
with the charge of falsification, however, also
shows that respondent Baroy did not account for
what happened to the notarial fees received for
those documents notarized during the month of
July and September, 1992. The evidence adduced
in this case also sufficiently show that she
received cash bond deposits and she did not
deposit them to a bank or to the Municipal
Treasurer; and that she only issued temporary
receipts for said cash bond deposits.
For July, 1992 there were only six (6) documents
reported to have been notarized by Judge
Palaypayon although the documents notarized for
said month were actually one hundred thirteen
(113) as recorded in the notarial register. For
September, 1992, there were only five (5)
documents reported as notarized for that month,
though the notarial register show(s) that there
were fifty-six (56) documents actually notarized.
The fee for each document notarized as
appearing in the notarial register was P18.50.
Respondent Baroy and Sambo declared that what
was actually being charged was P20.00.
Respondent Baroy declared that P18.50 went to
the Supreme Court and P1.50 was being turned
over to the Municipal Treasurer.
Baroy, however, did not present any evidence to
show that she really sent to the Supreme Court
the notarial fees of P18.50 for each document
notarized and to the Municipal Treasurer the
additional notarial fee of P1.50. This should be
fully accounted for considering that Baroy herself
declared that some notarial fees were allowed by
her at her own discretion to be paid later.
Similarly, the solemnization fees have not been
accounted for by Baroy considering that she
admitted that even (i)n those instances where the
marriages were not solemnized due to lack of
marriage license the solemnization fees were not
returned anymore, unless the contracting parties
made a demand for their return. Judge
Palaypayon declared that he did not know of any
instance when solemnization fee was returned
when the marriage was not solemnized due to
lack of marriage license.
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Respondent Baroy also claims that Ramon Sambo

did not turn over to her some of the notarial fees.
This is difficult to believe. It was not only because
Sambo vehemently denied it, but the minutes of
the conference of the personnel of the MTC of
Tinambac dated January 20, 1992 shows that on
that date Baroy informed the personnel of the
court that she was taking over the functions she
assigned to Sambo, particularly the collection of
legal fees (Exh. 7). The notarial fees she claims
that Sambo did not turn over to her were for
those documents notarized (i)n July and
September, 1992 already. Besides there never
was any demand she made for Sambo to turn
over some notarial fees supposedly in his
possession. Neither was there any memorandum
she issued on this matter, in spite of the fact that
she has been holding meetings and issuing
memoranda to the personnel of the court (Exhs.
V, W, FF, FF-1, FF-2, FF-3; Exhs. 4-A
(supplement(s), 5-8, 6-S, 7-S and 8-S).
It is admitted by respondent Baroy that on
October 29, 1991 a cash bond deposit of a certain
Decara in the amount of One Thousand
(P1,000.00) Pesos was turned over to her after
she assumed office and for this cash bond she
issued only a temporary receipt (Exh. Y). She did
not deposit this cash bond in any bank or to the
Municipal Treasurer. She just kept it in her own
cash box on the alleged ground that the parties in
that case where the cash bond was deposited
informed her that they would settle the case
amicably.
Respondent Baroy declared that she finally
deposited the aforementioned cash bond of One
Thousand (P1,000.00) Pesos with the Land Bank
of the Philippines (LBP) in February, 1993, after
this administrative case was already filed (TSN,
pp. 27-28; 12-22-93). The Pass Book, however,
shows that actually Baroy opened an account
with the LBP, Naga Branch, only on March 26,
1993 when she deposited an amount of Two
Thousand (P2,000.00) Pesos (Exhs. 8 to 8-1-a).
She claims that One Thousand (P1,000.00) Pesos
of the initial deposit was the cash bond of Dacara.
If it were true, it was only after keeping to herself
the cash bond of One Thousand (P1,000.00)
Pesos for around one year and five months when
she finally deposited it because of the filing of
this case.
On April 29, 1993, or only one month and two
days after she finally deposited the One
Thousand (P1,000.00) Pesos cash bond of Dacara,
she withdrew it from the bank without any
authority or order from the court. It was only on
July 23, 1993, or after almost three (3) months
after she withdrew it, when she redeposited said
cash bond (TSN, p. 6; 1-4-94).

The evidence presented in this case also show

that on February 28, 1993 respondent Baroy
received also a cash bond of Three Thousand
(P3,000.00) Pesos from a certain Alfredo
Seprones in Crim. Case No. 5180. For this cash
bond deposit, respondent Baroy issued only an an
numbered temporary receipt (Exh. X and X-1).
Again Baroy just kept this Three Thousand
(P3,000.00) Pesos cash bond to herself. She did
not deposit it either (in) a bank or (with) the
Municipal Treasurer. Her explanation was that the
parties in Crim. Case No. 5180 informed her that
they would settle the case amicably. It was on
April 26, 1993, or almost two months later when
Judge Palaypayon issued an order for the release
of said cash bond (Exh. 7).
Respondent Baroy also admitted that since she
assumed office on October 21, 1991 she used to
issue temporary receipt only for cash bond
deposits and other payments and collections she
received. She further admitted that some of these
temporary receipts she issued she failed to place
the number of the receipts such as that receipt
marked Exhibit X (TSN, p. 35; 11-23-93). Baroy
claims that she did not know that she had to use
the official receipts of the Supreme Court. It was
only from February, 1993, after this case was
already filed, when she only started issuing
official receipts.
The next charge against the respondents is that
in order to be appointed Clerk of Court, Baroy
gave Judge Palaypayon an air conditioner as a
gift. The evidence adduced with respect to this
charge, show that on August 24, 1991 Baroy
bought an air conditioner for the sum of
Seventeen Thousand Six Hundred (P17,600.00)
Pesos (Exhs. I and I-1). The same was paid partly
in cash and in check (Exhs. I-2 and I-3). When the
air conditioner was brought to court in order to be
installed in the chamber of Judge Palaypayon, it
was still placed in the same box when it was
bought and was not used yet.
The respondents claim that Baroy sold it to Judge
Palaypayon for Twenty Thousand (P20,000.00)
Pesos on installment basis with a down payment
of Five Thousand (P5,000.00) Pesos and as proof
thereof the respondents presented a typewritten
receipt dated May 29, 1993 (Exh. 22). The receipt
was signed by both respondents and by the
Municipal Mayor of Tinambac, Camarines Sur and
another person as witness.
The alleged sale between respondents is not
beyond suspicion. It was bought by Baroy at a
time when she was applying for the vacant
position of Clerk of Court (to) which she was
eventually appointed in October, 1991. From the
time she bought the air conditioner on August 24,
1991 until it was installed in the office of Judge
Palaypayon it was not used yet. The sale to Judge
Palaypayon was only evidenced by a mere
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typewritten receipt dated May 29, 1992 when this

case was already filed. The receipt could have
been easily prepared. The Municipal Mayor of
Tinambac who signed in the receipt as a witness
did not testify in this case. The sale is between
the Clerk of Court and the Judge of the same
court. All these circumstances give rise to
suspicion of at least impropriety. Judges should
avoid such action as would subject (them) to
suspicion and (their) conduct should be free from
the appearance of impropriety (Jaagueta vs.
Boncasos, 60 SCRA 27).
With respect to the charge that Judge Palaypayon
received a cash bond deposit of One Thousand
(P1,000.00) Pesos from Januaria Dacara without
issuing a receipt, Dacara executed an affidavit
regarding this charge that Judge Palaypayon did
not give her a receipt for the P1,000.00 cash
bond she deposited (Exh. N). Her affidavit,
however, has no probative value as she did not
show that this cash bond of P1,000.00 found its
way into the hands of respondent Baroy who
issued only a temporary receipt for it and this has
been discussed earlier.
Another charge against Judge Palaypayon is the
getting of detention prisoners to work in his
house and one of them escaped while in his
custody and was never found again. To hide this
fact, the case against said accused was ordered
archived by Judge Palaypayon. The evidence
adduced with respect to this particular charge,
show that in Crim. Case No. 5647 entitled People
vs. Stephen Kalaw, Alex Alano and Allan Adupe,
accused Alex Alano and Allan Adupe were
arrested on april 12, 1991 and placed in the
municipal jail of Tinambac, Camarines sur (Exhs.
O, O-1, O-2 and O-3; Exh. 25). The evidence
presented that Alex Alano was taken by Judge
Palaypayon from the municipal jail where said
accused was confined and that he escaped while
in custody of Judge Palaypayon is solely
testimonial, particularly that of David Ortiz, a
former utility worker of the MTC of Tinambac.
Herein investigator finds said evidence not
sufficient. The complainants should have
presented records from the police of Tinambac to
show that Judge Palaypayon took out from the
municipal jail Alex Alano where he was under
detention and said accused escaped while in the
custody of Judge Palaypayon.
The order, however, of Judge Palaypayon dated
April 6, 1992 in Crim. Case No. 5047 archiving
said case appears to be without basis. The order
states: "This case was filed on April 12, 1991 and
the records show that the warrant of arrest (was)
issued against the accused, but up to this
moment there is no return of service for the
warrant of arrest issued against said accused"
(Exh. O-4). The records of said case, however,
show that in fact there was a return of the service

of the warrant of arrest dated April 12, 1991

showing that Alano and Adupe were arrested
(Exh. O-3).
Judge Palaypayon explained that his order dated
April 6, 1992 archiving Crim. Case No. 5047
referred only to one of the accused who remained
at large. The explanation cannot be accepted
because the two other accused, Alano and Adupe,
were arrested. Judge Palaypayon should have
issued an order for the arrest of Adupe who
allegedly jumped bail, but Alano was supposed to
be confined in the municipal jail if his claim is
true that he did not take custody of Alano.
The explanation also of Judge Palaypayon why he
ordered the case archived was because he heard
from the police that Alano escaped. This
explanation is not acceptable either. He should
ha(ve) set the case and if the police failed to
bring to court Alano, the former should have been
required to explain in writing why Alano was not
brought to court. If the explanation was that
Alano escaped from jail, he should have issued an
order for his arrest. It is only later on when he
could not be arrested when the case should have
been ordered archived. The order archiving this
case for the reason that he only heard that Alano
escaped is another circumstance which gave rise
to a suspicion that Alano might have really
escaped while in his custody only that the
complainants could not present records or other
documentary evidence to prove the same.
The last charge against the respondents is that
they collected filing fees on collection cases filed
by the Rural Bank of Tinambac, Camarines Sur
which was supposed to be exempted in paying
filing fees received was deposited by respondent
Baroy in her personal account in the bank. The
evidence presented show that on February 4,
1992 the Rural Bank of Tinambac filed ten (10)
civil cases for collection against farmers and it
paid the total amount of Four Hundred (P400.00)
Pesos representing filing fees. The complainants
cited Section 14 of Republic Act 720, as
amended, which exempts Rural Bank (from) the
payment of filing fees on collection of sums of
money cases filed against farmers on loans they
obtained.
Judge Palaypayon, however, had nothing to do
with the payment of the filing fees of the Rural
Bank of Tinambac as it was respondent Baroy
who received them and besides, on February 4,
1992, he was on sick leave. On her part Baroy
claims that the bank paid voluntarily the filing
fees. The records, however, show that respondent
Baroy sent a letter to the manager of the bank
dated January 28, 1992 to the effect that if the
bank would not pay she would submit all Rural
Bank cases for dismissal (Annex 6, comment by
respondent Baroy).
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Respondent Baroy should have checked whether

the Rural Bank of Tinambac was really exempt
from the payment of filing fees pursuant to
Republic Act 720, as amended, instead of
threatening the bank to have its cases be
submitted to the court in order to have them
dismissed. Here the payment of the filing fees
was made on February 4, 1992, but the Four
Hundred (P400.00) Pesos was only turned over to
the Municipal Treasurer on March 12, 1992. Here,
there is an undue delay again in complying with
her obligation as accountable officer.
In view of the foregoing findings that the
evidence
presented
by
the
complainants
sufficiently show that respondent Judge Lucio P.
Palaypayon, Jr. had solemnized marriages,
particularly that of Sammy Bocaya and Gina
Besmonte, without a marriage license, and that it
having been shown that he did not comply with
his duty in closely supervising his clerk of court in
the preparation of the monthly report of cases
being submitted to the Supreme Court,
particularly for the months of July and September,
1992 where it has been proven that the reports
for said two (2) months were falsified with respect
to the number of documents notarized, it is
respectfully recommended that he be imposed a
fine of TEN THOUSAND (P10,000.00) PESOS with
a warning that the same or similar offenses will
be more severely dealt with.
The fact that Judge Palaypayon did not sign the
marriage contracts or certificates of those
marriages he solemnized without a marriage
license, there were no dates placed in the
marriage contracts to show when they were
solemnized, the contracting parties were not
furnished their marriage contracts and the Local
Civil Registrar was not being sent any copy of the
marriage contract, will not absolve him from
liability. By solemnizing alone a marriage without
a marriage license he as the solemnizing officer is
the one responsible for the irregularity in not
complying (with) the formal requ(i)sites of
marriage and under Article 4(3) of the Family
Code of the Philippines, he shall be civilly,
criminally and administratively liable.
Judge Palaypayon is likewise liable for his
negligence or failure to comply with his duty of
closely supervising his clerk of court in the
performance of the latter's duties and functions,
particularly the preparation of the monthly report
of cases (Bendesula vs. Laya, 58 SCRA 16). His
explanation that he only signed the monthly
report of cases only when his clerk of court
already signed the same, cannot be accepted. It
is his duty to closely supervise her, to check and
verify the records if the monthly reports prepared
by his clerk of court do not contain false
statements. It was held that "A judge cannot take
refuge behind the inefficiency or incompetence of

court personnel (Nidua vs. Lazaro, 174 SCRA

158).
In view also of the foregoing finding that
respondent Nelia Esmeralda-Baroy, the clerk of
court of the Municipal Trial Court of Tinambac,
Camarines Sur, has been found to have falsified
the monthly report of cases for the months of July
and September, 1992 with respect to the number
of documents notarized, for having failed to
account (for) the notarial fees she received for
said two (2) months period; for having failed to
account (for) the solemnization fees of those
marriages allegedly not solemnized, but the
solemnization fees were not returned; for
unauthorized issuance of temporary receipts,
some of which were issued unnumbered; for
receiving the cash bond of Dacara on October 29,
1991 in the amount of One Thousand (P1,000.00)
Pesos for which she issued only a temporary
receipt (Exh. Y) and for depositing it with the
Land Bank of the Philippines only on March 26,
1993, or after one year and five months in her
possession and after this case was already filed;
for withdrawing said cash bond of One Thousand
(P1,000.00) Pesos on April 29, 1993 without any
court order or authority and redepositing it only
on July 23, 1993; for receiving a cash bond of
Three Thousand (P3,000.00) Pesos from Alfredo
Seprones in Crim. Case No. 5180, MTC, Tinambac,
Camarines Sur, for which she issued only an
unnumbered temporary receipts (Exhs. X and X1) and for not depositing it with a bank or with
the Municipal Treasurer until it was ordered
released; and for requiring the Rural Bank of
Tinambac, Camarines Sur to pay filing fees on
February 4, 1992 for collection cases filed against
farmers in the amount of Four Hundred (P400.00)
Pesos, but turning over said amount to the
Municipal Treasurer only on March 12, 1992, it is
respectfully recommended that said respondent
clerk of court Nelia Esmeralda-Baroy be dismissed
from the service.
It is provided that "Withdrawal of Court deposits
shall be by the clerk of court who shall issue
official receipt to the provincial, city or municipal
treasurer for the amount withdrawn. Court
deposits cannot be withdrawn except by order of
the court, . . . ." (Revised Manual of Instructions
for Treasurers, Sec. 183, 184 and 626; p. 127,
Manual for Clerks of Court). A circular also
provides that the Clerks of Court shall
immediately issue an official receipt upon receipt
of deposits from party litigants and thereafter
deposit from party litigants and thereafter deposit
intact the collection with the municipal, city or
provincial treasurer and their deposits can only
be withdrawn upon proper receipt and order of
the court (DOJ Circular No. 52, 26 April 1968; p.
136, Manual for Clerks of Court). Supreme Court
Memorandum Circular No. 5, 25 November 1982,
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also provides that "all collections of funds of

fiduciary character including rental deposits, shall
be deposited immediately by the clerk of court
concerned upon receipt thereof with City,
Municipal or Provincial Treasurer where his court
is located" and that "no withdrawal of any of such
deposits shall be made except upon lawful order
of the court exercising jurisdiction over the
subject matter.
Respondent Baroy had either failed to comply
with the foregoing circulars, or deliberately
disregarded, or even intentionally violated them.
By her conduct, she demonstrated her callous
unconcern for the obligations and responsibility of
her duties and functions as a clerk of court and
accountable officer. The gross neglect of her
duties shown by her constitute(s) a serious
misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma
Hiam, Clerk of Court, MTCC, Branch I, Batangas
City; A.M. No. P-90-414; August 9, 1993, it was
held that "The Clerk of court is not authorized to
keep funds in his/her custody; monies received by
him/her shall be deposited immediately upon
receipt thereof with the City, Municipal or
Provincial Treasurer, Supreme Court Circular Nos.
5 dated November 25, 1982 and 5-A dated
December 3, 1982. Respondent Hiam's failure to
remit the cash bail bonds and fine she collected
constitutes
serious
misconduct
and
her
misappropriation of said funds constitutes
dishonesty. "Respondent Norma Hiam was found
guilty of dishonesty and serious misconduct
prejudicial to the best interest of the service and
(the Court) ordered her immediate dismissal
(from) the service.
xxx xxx xxx
We here emphasize once again our adjuration
that the conduct and behavior of everyone
connected with an office charged with the
dispensation of justice, from the presiding judge
to the lowliest clerk, should be circumscribed with
the heavy burden of responsibility. His conduct, at
all times, must not only be characterized by
propriety and decorum but, above all else, must
be beyond suspicion. Every employee should be
an example of integrity, uprightness and honesty.
5 Integrity in a judicial office is more than a
virtue, it is a necessity. 6 It applies, without
qualification as to rank or position, from the judge
to the least of its personnel, they being standardbearers of the exacting norms of ethics and
morality imposed upon a Court of justice. LLpr
On the charge regarding illegal marriages the
Family Code pertinently provides that the formal
requisites of marriage are, inter alia, a valid
marriage license except in the cases provided for
therein. 7 Complementarily, it declares that the
absence of any of the essential or formal
requisites shall generally render the marriage

void ab initio and that, while an irregularity in the

formal requisites shall not affect the validity of
the marriage, the party or parties responsible for
the irregularity shall be civilly, criminally and
administratively liable. 8
The civil aspect is addressed to the contracting
parties and those affected by the illegal
marriages, and what we are providing for herein
pertains to the administrative liability of
respondents, all without prejudice to their
criminal responsibility. The Revised Penal Code
provides that "(p)riests or ministers of any
religious denomination or sect, or civil authorities
who shall perform or authorize any illegal
marriage ceremony shall be punished in
accordance with the provisions of the Marriage
Law." 9 This is of course, within the province of
the prosecutorial agencies of the Government.
The recommendation with respect to the
administrative sanction to be imposed on
respondent judge should, therefore, be modified.
For one, with respect to the charge of illegal
solemnization of marriages, it does appear that
he had not taken to heart, but actually trifled
with, the law's concern for the institution of
marriage and the legal effects flowing from civil
status. This, and his undeniable participation in
the other offenses charged as hereinbefore
narrated in detail, approximate such serious
degree of misconduct and of gross negligence in
the performance of judicial duties as to ineludibly
require a higher penalty. LLjur
WHEREFORE, the Court hereby imposes a FINE of
P20,000.00 on respondent Judge Lucio P.
Palaypayon, Jr., with a stern warning that any
repetition of the same or similar offenses in the
future will definitely be severely dealth with.
Respondent Nelia Esmeralda-Baroy is hereby
DISMISSED from the service, with forfeiture of all
retirement benefits and with prejudice to
employment
in
any
branch,
agency
or
instrumentality of the Government, including
government-owned or controlled corporations.
Let copies of this decision be spread on their
records and furnished to the Office of the
Ombudsman for appropriate action.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide,
Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.
Cruz, J., took no part.
Bidin, J., is on leave.
THIRD DIVISION
[G.R. No. 57062. January 24, 1992.]
MARIA DEL ROSARIO MARIATEGUI, ET AL.,
petitioners, vs. HON. COURT OF APPEALS,
JACINTO MARIATEGUI, JULIAN MARIATEGUI and
PAULINA MARIATEGUI, respondents.
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Montesa, Albon & Associates for petitioners.

Parmenio B. Patacsil, Patacsil Twins Law Office for
the heirs of the late Maria del Rosario Mariategui.
Tinga, Fuentes & Tagle Law Firm for private
respondents.
SYLLABUS
1.REMEDIAL
LAW;
CIVIL
PROCEDURE;
ACTIONS, NATURE THEREOF, DETERMINED
BY THE FACTS ALLEGED IN THE COMPLAINT.
The Court of Appeals correctly adopted the
settled rule that the nature of an action filed in
court is determined by the facts alleged in the
complaint constituting the cause of action
(Republic vs. Estenzo, 158 SCRA 282 [1988]). It
has been held that, if the relief demanded is not
the proper one which may be granted under the
law, it does not characterize or determine the
nature of plaintiffs' action, and the relief to which
plaintiff is entitled based on the facts alleged by
him in his complaint, although it is not the relief
demanded, is what determines the nature of the
action (1 Moran, p. 127, 1979 ed., citing Baguioro
vs. Barrios, et al., 77 Phil. 120).
2.ID.; EVIDENCE; PRESUMPTIONS, MAN AND
WOMAN,
DEPORTING
THEMSELVES
AS
HUSBAND AND WIFE; PRESUMED TO HAVE
ENTERED INTO A LAWFUL CONTRACT OF
MARRIAGE; CASE AT BAR. Lupo Mariategui
and Felipa Velasco were alleged to have been
lawfully married in or about 1930. This fact is
based on the declaration communicated by Lupo
Mariategui to Jacinto who testified that "when
(his) father was still living, he was able to
mention to (him) that he and (his) mother were
able to get married before a Justice of the Peace
of Taguig, Rizal." The spouses deported
themselves as husband and wife, and were
known in the community to be such. Although no
marriage certificate was introduced to this effect,
no evidence was likewise offered to controvert
these facts. Moreover, the mere fact that no
record of the marriage exists does not invalidate
the marriage, provided all requisites for its
validity are present (People vs. Borromeo, 133
SCRA 106 [1984]). Under these circumstances, a
marriage may be presumed to have taken place
between Lupo and Felipa. The laws presume that
a man and a woman, deporting themselves as
husband and wife, have entered into a lawful
contract of marriage; that a child born in lawful
wedlock, there being no divorce, absolute or from
bed and board is legitimate; and that things have
happened according to the ordinary course of
nature and the ordinary habits of life (Section
5(z), (bb), (cc), Rule 131, Rules of Court; Corpus v.
Corpus, 85 SCRA 567 [1978]; Saurnaba v.
Workmen's Compensation, 85 SCRA 502 [1978];

Alavado v. City Gov't. of Tacloban, 139 SCRA 230

[1985]; Reyes v. Court of Appeals, 135 SCRA 439
[1985]).
3.ID.; ID.; ID.; PRESUMPTION OF MARRIAGE;
LOOKED WITH GREAT FAVOR BY COURT;
RATIONALE.

Courts
look
upon
the
presumption of marriage with great favor as it is
founded on the following rationale: "The basis of
human society throughout the civilized world is
that of marriage. Marriage in this jurisdiction is
not only a civil contract, but it is a new relation,
an institution in the maintenance of which the
public is deeply interested. Consequently, every
intendment of the law leans toward legalizing
matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any
counter-presumption or evidence special to that
case, to be in fact married. The reason is that
such is the common order of society and if the
parties were not what they thus hold themselves
out as being, they would be living in the constant
violation of decency and of law . . . ." (Adong vs.
Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted
in Alavado vs. City Government of Tacloban, 139
SCRA 230 [1985]). So much so that once a man
and a woman have lived as husband and wife and
such relationship is not denied nor contradicted,
the presumption of their being married must be
admitted as a fact (Alavado v. City Gov't. of
Tacloban, 139 SCRA 230).
4.CIVIL
LAW;
PERSONS
AND
FAMILY
RELATIONS; FILIATION; VARIOUS TYPES OF
ILLEGITIMATE
CHILDREN;
ELIMINATED
UNDER THE FAMILY CODE. The Civil Code
provides for the manner under which legitimate
filiation may be proven. However, considering the
effectivity of the Family Code of the Philippines,
the case at bar must be decided under a new if
not entirely dissimilar set of rules because the
parties have been overtaken by events, to use
the popular phrase (Uyguangco vs. Court of
Appeals, G.R. No. 76873, October 26, 1989).
Thus, under Title VI of the Family Code, there are
only two classes of children legitimate and
illegitimate. The fine distinctions among various
types of illegitimate children have been
eliminated (Castro vs. Court of Appeals, 173 SCRA
656 [1989]).
5.ID.; ID.; ID.; HOW MAY BE ESTABLISHED;
RULE. Article 172 of the Family Code provides
that the filiation of legitimate children may be
established by the record of birth appearing in
the civil register or a final judgment or by the
open and continuous possession of the status of a
legitimate child.

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6.ID.; PRESCRIPTION OF ACTION; DOES NOT

LIE FOR AN ACTION FOR PARTITION;
EXCEPTION. Prescription does not run against
private respondents with respect to the filing of
the action for partition so long as the heirs for
whose benefit prescription is invoked, have not
expressly or impliedly repudiated the coownership. In other words, prescription of an
action for partition does not lie except when the
co-ownership is properly repudiated by the coowner (Del Banco vs. Intermediate Appellate
Court, 156 SCRA 55 [1987] citing Jardin vs.
Hollasco, 117 SCRA 532 [1982]). Otherwise
stated, a co-owner cannot acquire by prescription
the share of the other co-owners absent a clear
repudiation of co-ownership duly communicated
to the other co-owners (Mariano vs. De Vega, 148
SCRA 342 [1987]). Futhermore, an action to
demand partition is imprescriptible and cannot be
barred by laches (Del Banco vs. IAC, 156 SCRA 55
[1987]).
7.ID.; ID.; ID.; ID.; REPUDIATION BY A COOWNER
AS
AN
EXCEPTION;
NOT
APPRECIATED IN CASE AT BAR. Petitioners
contend that they have repudiated the coownership when they executed the extrajudicial
partition excluding the private respondents and
registered the properties in their own names
(Petition, p. 16; Rollo, p. 20). However, no valid
repudiation was made by petitioners to the
prejudice of private respondents. Assuming
petitioners' registration of the subject lot in 1971
was an act of repudiation of the co-ownership,
prescription had not yet set in when private
respondents filed in 1973 the present action for
partition (Ceniza vs. C.A., 182 SCRA 552 [1990]).
Petitioners' registration of the properties in their
names in 1971 did not operate as a valid
repudiation of the co-ownership. In Adille vs.
Court of Appeals (157 SCRA 455, 461-462
[1988]), the Court held: "Prescription, as a mode
of terminating a relation of co-ownership, must
have been preceded by repudiation (of the coownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act of
repudiation is clearly made known to the other
co-owners; (3) the evidence thereon is clear and
conclusive; and (4) he has been in possession
through open, continuous, exclusive, and
notorious possession of the property for the
period required by law." . . . "It is true that
registration under the Torrens system is
constructive notice of title, but it has likewise
been our holding that the Torrens title does not
furnish shield for fraud. It is therefore no
argument to say that the act of registration is
equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-standing

rule that registration operates as a universal

notice of title."
DECISION
BIDIN, J p:
This is a petition for review on certiorari of the
decision * of the Court of Appeals dated
December 24, 1980 in CA-G.R. No. 61841,
entitled "Jacinto Mariategui, et al. v. Maria del
Rosario Mariategui, et al.," reversing the
judgment of the then Court of First Instance of
Rizal, Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26,
1953 (Brief for respondents, Rollo, pp. 116; 8).
During his lifetime, Lupo Mariategui contracted
three (3) marriages. With his first wife, Eusebia
Montellano, who died on November 8, 1904, he
begot four (4) children, namely: Baldomera, Maria
del Rosario, Urbana and Ireneo. Baldomera died
and was survived by her children named Antero,
Rufina, Catalino, Maria, Gerardo, Virginia and
Federico, all surnamed Espina. Ireneo also died
and left a son named Ruperto. With his second
wife, Flaviana Montellano, he begot a daughter
named Cresenciana who was born on May 8,
1910 (Rollo, Annex "A", p. 36)
Lupo Mariategui and Felipa Velasco (Lupo's third
wife) got married sometime in 1930. They had
three children, namely: Jacinto, born on July 3,
1929, Julian, born on February 16, 1931 and
Paulina, born on April 19, 1938. Felipa Velasco
Mariategui died in 1941 (Rollo, Ibid).
At the time of his death, Lupo Mariategui left
certain properties which he acquired when he
was still unmarried (Brief for respondents, Rollo,
pp. 116; 4). These properties are described in the
complaint as Lots Nos. 163, 66, 1346 and 156 of
the Muntinlupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his
first and second manages, namely, Maria del
Rosario,
Urbana,
Ruperto,
Cresencia,
all
surnamed Mariategui and Antero, Rufina,
Catalino, Maria, Gerardo, Virginia and Federico, all
surnamed
Espina,
executed
a
deed
of
extrajudicial partition whereby they adjudicated
unto themselves Lot No. 163 of the Muntinglupa
Estate. Thereafter, Lot No. 163 was the subject of
a voluntary registration proceedings filed by the
adjudicates under Act No. 496, and the land
registration court issued a decree ordering the
registration of the lot. Thus, on April 1, 1971, OCT
No. 8828 was issued in the name of the abovementioned heirs. Subsequently, the registered
owners caused the subdivision of the said lot into
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Lots Nos. 163-A to 163-H, for which separate

transfer certificates of title were issued to the
respective parties (Rollo, ibid). LexLib
On April 23, 1973, Lupo's children by his third
marriage with Felipa Velasco (Jacinto, Julian and
Paulina) filed with the lower court an amended
complaint claiming that Lot No. 163 together with
Lots Nos. 669, 1346 and 164 were owned by their
common father, Lupo Mariategui, and that, with
the adjudication of Lot No. 163 to their co-heirs,
they (children of the third marriage) were
deprived of their respective shares in the lots.
Plaintiffs pray for partition of the estate of their
deceased father and annulment of the deed of
extrajudicial partition dated December 2, 1967
(Petition, Rollo, p. 10). Cresencia Mariategui Abas,
Flaviana Mariategui Cabrera and Isabel Santos
were impleaded in the complaint as unwilling
defendants as they would not like to join the suit
as plaintiffs although they acknowledged the
status and rights of the plaintiffs and agreed to
the partition of the parcels of land as well as the
accounting of their fruits (Ibid., Rollo, p. 8; Record
on Appeal, p. 4).
The defendants (now petitioners) filed an answer
with counterclaim (Amended Record on Appeal, p.
13). Thereafter, they filed a motion to dismiss on
the grounds of lack of cause of action and
prescription. They specifically contended that the
complaint was one for recognition of natural
children. On August 14, 1974, the motion to
dismiss was denied by the trial court, in an order
the dispositive portion of which reads:
"It is therefore the opinion of the Court that
Articles 278 and 285 of the Civil Code cited by
counsel for the defendants are of erroneous
application to this case. The motion to dismiss is
therefore denied for lack of merit.
"SO ORDERED." (ibid, p. 37).
However, on February 16, 1977, the complaint as
well as petitioners' counterclaim were dismissed
by the trial court, in its decision stating thus:
"The plaintiffs' right to inherit depends upon the
acknowledgment
or
recognition
of
their
continuous enjoyment and possession of status of
children of their supposed father. The evidence
fails to sustain either premise, and it is clear that
this action cannot be sustained. (Ibid, Rollo, pp.
67-68).
The plaintiffs elevated the case
Appeals on the ground that
committed an error ". . . in not
parents of the appellants, Lupo

to the Court of
the trial court
finding that the
Mariategui and

Felipa Velasco (were) lawfully married, and in

holding (that) they (appellants) are not legitimate
children of their said parents, thereby divesting
them of their inheritance . . . ." (Rollo, pp. 14-15)
On December 24, 1980, the Court of Appeals
rendered a decision declaring all the children and
descendants of Lupo Mariategui, including
appellants Jacinto, Julian and Paulina (children of
the third manage) as entitled to equal shares in
the estate of Lupo Mariategui; directing the
adjudicates in the extrajudicial partition of real
properties who eventually acquired transfer
certificates of title thereto, to execute deeds of
reconveyance in favor, and for the shares, of
Jacinto, Julian and Paulina provided rights of
innocent third persons are not prejudiced
otherwise the said adjudicates shall reimburse
the said heirs the fair market value of their
shares; and directing all the parties to submit to
the lower court a project of partition in the net
estate of Lupo Mariategui after payment of taxes,
other government charges and outstanding legal
obligations.
The defendants-appellees filed a motion for
reconsideration of said decision but it was denied
for lack of merit. Hence, this petition which was
given due course by the court on December 7,
1981.
The petitioners submit to the Court the following
issues: (a) whether or not prescription barred
private respondents' right to demand the
partition of the estate of Lupo Mariategui, and (b)
whether or not the private respondents, who
belatedly filed the action for recognition, were
able to prove their successional rights over said
estate. The resolution of these issues hinges,
however, on the resolution of the preliminary
matter, i.e., the nature of the complaint filed by
the private respondents.
The complaint alleged, among other things, that
"plaintiffs are the children of the deceased
spouses Lupo Mariategui . . . and Felipa Velasco";
that "during his lifetime, Lupo Mariategui had
repeatedly acknowledged and confirmed plaintiffs
as his children and the latter, in turn, have
continuously enjoyed such status since their
birth"; and "on the basis of their relationship to
the deceased Lupo Mariategui and in accordance
with the law on intestate succession, plaintiffs are
entitled to inherit shares in the foregoing estate
(Record on Appeal, pp. 5 & 6). It prayed, among
others, that plaintiffs be declared as children and
heirs of Lupo Mariategui and adjudication in favor
of plaintiffs their lawful shares in the estate of the
decedent (Ibid, p. 10).

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A perusal of the entire allegations of the

complaint, however, shows that the action is
principally one of partition. The allegation with
respect to the status of the private respondents
was raised only collaterally to assert their rights
in the estate of the deceased. Hence, the Court of
Appeals correctly adopted the settled rule that
the nature of an action filed in court is
determined by the facts alleged in the complaint
constituting the cause of action (Republic vs.
Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is
not the proper one which may be granted under
the law, it does not characterize or determine the
nature of plaintiffs' action, and the relief to which
plaintiff is entitled based on the facts alleged by
him in his complaint, although it is not the relief
demanded, is what determines the nature of the
action (1 Moran, p. 127, 1979 ed., citing Baguioro
vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private
respondents' demand for partition of the estate of
Lupo Mariategui, the Court of Appeals aptly held
that the private respondents are legitimate
children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged
to have been lawfully married in or about 1930.
This fact is based on the declaration
communicated by Lupo Mariategui to Jacinto who
testified that "when (his) father was still living, he
was able to mention to (him) that he and (his)
mother were able to get married before a Justice
of the Peace of Taguig, Rizal." The spouses
deported themselves as husband and wife, and
were known in the community to be such.
Although no marriage certificate was introduced
to this effect, no evidence was likewise offered to
controvert these facts. Moreover, the mere fact
that no record of the marriage exists does not
invalidate the marriage, provided all requisites for
its validity are present (People vs. Borromeo, 133
SCRA 106 [1984]).
Under these circumstances, a marriage may be
presumed to have taken place between Lupo and
Felipa. The laws presume that a man and a
woman, deporting themselves as husband and
wife, have entered into a lawful contract of
marriage; that a child born in lawful wedlock,
there being no divorce, absolute or from bed and
board is legitimate; and that things have
happened according to the ordinary course of
nature and the ordinary habits of life (Section 5
(z), (bb), (cc), Rule 131, Rules of Court; Corpus v.
Corpus, 85 SCRA 567 [1978]; Saurnaba v.
Workmen's Compensation, 86 SCRA 502 [1978];
Alavado v. City Gov't. of Tacloban, 139 SCRA 230

[1985]; Reyes v. Court of Appeals, 135 SCRA 439

[1985]).
Courts look upon the presumption of marriage
with great favor as it is founded on the following
rationale:
"The basis of human society throughout the
civilized world is that of marriage. Manage in this
jurisdiction is not only a civil contract, but it is a
new relation, an institution in the maintenance of
which
the
public
is
deeply
interested.
Consequently, every intendment of the law leans
toward legalizing matrimony Persons dwelling
together in apparent matrimony are presumed, in
the absence of any counter-presumption or
evidence special to that case, to be in fact
married. The reason is that such is the common
order of society and if the parties were not what
they thus hold themselves out as being, they
would be living in the constant violation of
decency and of law . . ." (Adong vs. Cheong Seng
Gee, 43 Phil. 43, 56 [1922] quoted in Alavado vs.
City Government of Tacloban, 139 SCRA 230
[1985]).
So much so that once a man and a woman have
lived as husband and wife and such relationship
is not denied nor contradicted, the presumption
of their being married must be admitted as a fact
(Alavado v. City Gov't. of Tacloban, supra).
The Civil Code provides for the manner under
which legitimate filiation may be proven.
However, considering the effectivity of the Family
Code of the Philippines, the case at bar must be
decided under a new if not entirely dissimilar set
of rules because the parties have been overtaken
by events, to use the popular phrase (Uyguangco
vs. Court of Appeals, G.R. No. 76873, October 26,
1989). Thus, under Title VI of the Family Code,
there are only two classes of children
legitimate and illegitimate. The fine distinctions
among various types of illegitimate children have
been eliminated (Castro vs. Court of Appeals, 173
SCRA 656 [1989]).

other private respondents, Julian and Paulina,

they may not have presented in evidence any of
the documents required by Article 172 but they
continuously enjoyed the status of children of
Lupo Mariategui in the same manner as their
brother Jacinto.
While the trial court found Jacinto's testimonies to
be inconsequential and lacking in substance as to
certain dates and names of relatives with whom
their family resided, these are but minor details.
The nagging fact is that for a considerable length
of time and despite the death of Felipa in 1941,
the private respondents and Lupo lived together
until Lupo's death in 1953. It should be noted that
even the trial court mentioned in its decision the
admission made in the affidavit of Cresenciana
Mariategui Abas, one of the petitioners herein,
that ". . . Jacinto, Julian and Paulina Mariategui ay
pawang mga kapatid ko sa ama . . ." (Exh. M,
Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other
conclusion than that private respondents are
legitimate children and heirs of Lupo Mariategui
and therefore, the time limitation prescribed in
Article 285 for filing an action for recognition is
inapplicable to this case. Corollarily, prescription
does not run against private respondents with
respect to the filing of the action for partition so
long as the heirs for whose benefit prescription is
invoked, have not expressly or impliedly
repudiated the co-ownership. In other words,
prescription of an action for partition does not lie
except when the co-ownership is properly
repudiated by the co-owner (Del Banco vs.
Intermediate Appellate Court, 156 SCRA 55
[1987] citing Jardin vs. Hollasco, 117 SCRA 532
[1982]). Cdpr

Article 172 of the said Code provides that the

filiation of legitimate children may be established
by the record of birth appearing in the civil
register or a final judgment or by the open and
continuous possession of the status of a
legitimate child.

Otherwise stated, a co-owner cannot acquire by

prescription the share of the other co-owners
absent a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano
vs. De Vega, 148 SCRA 342 [1987]). Furthermore,
an action to demand partition is imprescriptible
and cannot be barred by laches (Del Banco vs.
IAC, 156 SCRA 65 [1987]). On the other hand, an
action for partition may be seen to be at once an
action for declaration of co-ownership and for
segregation and conveyance of a determinate
portion of the property involved (Roque vs. IAC,
165 SCRA 118 [1988]).

Evidence on record proves the legitimate filiation

of the private respondents. Jacinto's birth
certificate is a record of birth referred to in the
said article. Again, no evidence which tends to
disprove facts contained therein was adduced
before the lower court. In the case of the two

Petitioners contend that they have repudiated the

co-ownership
when
they
executed
the
extrajudicial partition excluding the private
respondents and registered the properties in their
own names (Petition, p. 16; Rollo, p. 20).
However, no valid repudiation was made by

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petitioners
to
the
prejudice
of
private
respondents. Assuming petitioners' registration of
the subject lot in 1971 was an act of repudiation
of the co-ownership, prescription had not yet set
in when private respondents filed in 1973 the
present action for partition (Ceniza vs. C.A., 181
SCRA 552 [1990]).
In their complaint, private respondents averred
that in spite of their demands, petitioners, except
the unwilling defendants in the lower court, failed
and refused to acknowledge and convey their
lawful shares in the estate of their father (Record
on Appeal, p. 6). This allegation, though denied
by the petitioners in their answer (Ibid, p. 14),
was never successfully refuted by them. Put
differently, in spite of petitioners' undisputed
knowledge of their relationship to private
respondents who are therefore their co-heirs,
petitioners
fraudulently
withheld
private
respondent's share in the estate of Lupo
Mariategui. According to respondent Jacinto, since
1962, he had been inquiring from petitioner Maria
del Rosario about their (respondents) share in the
property left by their deceased father and had
been assured by the latter (Maria del Rosario) not
to worry because they will get some shares. As a
matter of fact, sometime in 1969, Jacinto
constructed a house where he now resides on Lot
No. 163 without any complaint from petitioners.
Petitioners' registration of the properties in their
names in 1971 did not operate as a valid
repudiation of the co-ownership. In Adille vs.
Court of Appeals (157 SCRA 455, 461-462
[1988]), the Court held:
"Prescription, as a mode of terminating a relation
of co-ownership, must have been preceded by
repudiation (of the co-ownership). The act of
repudiation, in turn, is subject to certain
conditions: (1) a co-owner repudiates the coownership; (2) such an act of repudiation is
clearly made known to the other co-owners; (3)
the evidence thereon is clear and conclusive; and
(4) he has been in possession through open,
continuous, exclusive, and notorious possession
of the property for the period required by law."
xxx xxx xxx
"It is true that registration under the Torrens
system is constructive notice of title, but it has
likewise been our holding that the Torrens title
does not furnish shield for fraud. It is therefore no
argument to say that the act of registration is
equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-standing
rule that registration operates as a universal
notice of title."
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Inasmuch as petitioners registered the properties

in their names in fraud of their co-heirs,
prescription can only be deemed to have
commenced from the time private respondents
discovered the petitioners' act of defraudation
(Adille vs. Court of Appeals, supra). Hence,
prescription definitely may not be invoked by
petitioners
because
private
respondents
commenced the instant action barely two months
after learning that petitioners had registered in
their names the lots involved.
WHEREFORE, the petition is DENIED and the
assailed decision of the Court of Appeals dated
December 24, 1980 is Affirmed.
SO ORDERED.
Gutierrez, Jr., Feliciano, Davide, Jr. and Romero,
JJ ., concur.
THIRD DIVISION
[G.R. No. 175581. March 28, 2008.]
REPUBLIC OF THE PHILIPPINES, petitioner, vs.
JOSE A. DAYOT, respondent.
[G.R. No. 179474. March 28, 2008.]
FELISA TECSON-DAYOT, petitioner, vs. JOSE A.
DAYOT, respondent.
DECISION
CHICO-NAZARIO, J p:
Before us are two consolidated petitions. G.R. No.
175581 and G.R. No. 179474 are Petitions for
Review under Rule 45 of the Rules of Court filed
by the Republic of the Philippines and Felisa
Tecson-Dayot
(Felisa),
respectively,
both
challenging the Amended Decision 1 of the Court
of Appeals, dated 7 November 2006, in CA-G.R.
CV No. 68759, which declared the marriage
between Jose Dayot (Jose) and Felisa void ab
initio. CacHES
The records disclose that on 24 November 1986,
Jose and Felisa were married at the Pasay City
Hall. The marriage was solemnized by Rev. Tomas
V. Atienza. 2 In lieu of a marriage license, Jose
and Felisa executed a sworn affidavit, 3 also
dated 24 November 1986, attesting that both of
them had attained the age of maturity, and that
being unmarried, they had lived together as
husband and wife for at least five years.
On 7 July 1993, Jose filed a Complaint 4 for
Annulment and/or Declaration of Nullity of
Marriage with the Regional Trial Court (RTC),
Bian, Laguna, Branch 25. He contended that his
marriage with Felisa was a sham, as no marriage
ceremony was celebrated between the parties;
that he did not execute the sworn affidavit stating

that he and Felisa had lived as husband and wife

for at least five years; and that his consent to the
marriage was secured through fraud.
In his Complaint, Jose gave his version of the
events which led to his filing of the same.
According to Jose, he was introduced to Felisa in
1986. Immediately thereafter, he came to live as
a boarder in Felisa's house, the latter being his
landlady. Some three weeks later, Felisa
requested him to accompany her to the Pasay
City Hall, ostensibly so she could claim a package
sent to her by her brother from Saudi Arabia. At
the Pasay City Hall, upon a pre-arranged signal
from Felisa, a man bearing three folded pieces of
paper approached them. They were told that Jose
needed to sign the papers so that the package
could be released to Felisa. He initially refused to
do so. However, Felisa cajoled him, and told him
that his refusal could get both of them killed by
her brother who had learned about their
relationship. Reluctantly, he signed the pieces of
paper, and gave them to the man who
immediately left. It was in February 1987 when he
discovered that he had contracted marriage with
Felisa. He alleged that he saw a piece of paper
lying on top of the table at the sala of Felisa's
house. When he perused the same, he discovered
that it was a copy of his marriage contract with
Felisa. When he confronted Felisa, the latter
feigned ignorance. EAIaHD
In opposing the Complaint, Felisa denied Jose's
allegations and defended the validity of their
marriage. She declared that they had maintained
their relationship as man and wife absent the
legality of marriage in the early part of 1980, but
that she had deferred contracting marriage with
him on account of their age difference. 5 In her
pre-trial brief, Felisa expounded that while her
marriage to Jose was subsisting, the latter
contracted marriage with a certain Rufina Pascual
(Rufina) on 31 August 1990. On 3 June 1993,
Felisa filed an action for bigamy against Jose.
Subsequently, she filed an administrative
complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were both
employees of the National Statistics and
Coordinating Board. 6 The Ombudsman found
Jose administratively liable for disgraceful and
immoral conduct, and meted out to him the
penalty of suspension from service for one year
without emolument. 7
On 26 July 2000, the RTC rendered a Decision 8
dismissing the Complaint. It disposed:
WHEREFORE, after a careful evaluation and
analysis of the evidence presented by both
parties, this Court finds and so holds that the
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[C]omplaint does not deserve a favorable

consideration. Accordingly, the above-entitled
case is hereby ordered DISMISSED with costs
against [Jose]. 9 caIETS
The RTC ruled that from the testimonies and
evidence presented, the marriage celebrated
between Jose and Felisa on 24 November 1986
was valid. It dismissed Jose's version of the story
as implausible, and rationalized that:
Any person in his right frame of mind would
easily suspect any attempt to make him or her
sign a blank sheet of paper. [Jose] could have
already detected that something was amiss,
unusual, as they were at Pasay City Hall to get a
package for [Felisa] but it [was] he who was
made to sign the pieces of paper for the release
of the said package. Another indirect suggestion
that could have put him on guard was the fact
that, by his own admission, [Felisa] told him that
her brother would kill them if he will not sign the
papers. And yet it took him, more or less, three
months to "discover" that the pieces of paper
that he signed was [sic] purportedly the marriage
contract. [Jose] does not seem to be that
ignorant, as perceived by this Court, to be "taken
in for a ride" by [Felisa.]
[Jose's] claim that he did not consent to the
marriage was belied by the fact that he
acknowledged Felisa Tecson as his wife when he
wrote [Felisa's] name in the duly notarized
statement of assets and liabilities he filled up on
May 12, 1988, one year after he discovered the
marriage contract he is now claiming to be sham
and false. [Jose], again, in his company I.D., wrote
the name of [Felisa] as the person to be
contacted in case of emergency. This Court does
not believe that the only reason why her name
was written in his company I.D. was because he
was residing there then. This is just but a lame
excuse because if he really considers her not his
lawfully wedded wife, he would have written
instead the name of his sister.
When [Jose's] sister was put into the witness
stand, under oath, she testified that she signed
her name voluntarily as a witness to the marriage
in the marriage certificate (T.S.N., page 25,
November 29, 1996) and she further testified that
the signature appearing over the name of Jose
Dayot was the signature of his [sic] brother that
he voluntarily affixed in the marriage contract
(page 26 of T.S.N. taken on November 29, 1996),
and when she was asked by the Honorable Court
if indeed she believed that Felisa Tecson was
really chosen by her brother she answered yes.
The testimony of his sister all the more belied his

claim that his consent was procured through

fraud. 10
Moreover, on the matter of fraud, the RTC ruled
that Jose's action had prescribed. It cited Article
87 11 of the New Civil Code which requires that
the action for annulment of marriage must be
commenced by the injured party within four years
after the discovery of the fraud. Thus: AECIaD
That granting even for the sake of argument that
his consent was obtained by [Felisa] through
fraud, trickery and machinations, he could have
filed an annulment or declaration of nullity of
marriage at the earliest possible opportunity, the
time when he discovered the alleged sham and
false marriage contract. [Jose] did not take any
action to void the marriage at the earliest
instance. . . . . 12
Undeterred, Jose filed an appeal from the
foregoing RTC Decision to the Court of Appeals. In
a Decision dated 11 August 2005, the Court of
Appeals found the appeal to be without merit.
The dispositive portion of the appellate court's
Decision reads:
WHEREFORE, the Decision appealed from is
AFFIRMED. 13
The Court of Appeals applied the Civil Code to the
marriage between Jose and Felisa as it was
solemnized prior to the effectivity of the Family
Code. The appellate court observed that the
circumstances constituting fraud as a ground for
annulment of marriage under Article 86 14 of the
Civil Code did not exist in the marriage between
the parties. Further, it ruled that the action for
annulment of marriage on the ground of fraud
was filed beyond the prescriptive period provided
by law. The Court of Appeals struck down Jose's
appeal in the following manner:
Nonetheless, even if we consider that fraud or
intimidation was employed on Jose in giving his
consent to the marriage, the action for the
annulment thereof had already prescribed. Article
87 (4) and (5) of the Civil Code provides that the
action for annulment of marriage on the ground
that the consent of a party was obtained by
fraud, force or intimidation must be commenced
by said party within four (4) years after the
discovery of the fraud and within four (4) years
from the time the force or intimidation ceased.
Inasmuch as the fraud was allegedly discovered
by Jose in February, 1987 then he had only until
February, 1991 within which to file an action for
annulment of marriage. However, it was only on
July 7, 1993 that Jose filed the complaint for
annulment of his marriage to Felisa. 15 TaEIcS
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Likewise, the Court of Appeals did not accept

Jose's assertion that his marriage to Felisa was
void ab initio for lack of a marriage license. It
ruled that the marriage was solemnized under
Article 76 16 of the Civil Code as one of
exceptional character, with the parties executing
an affidavit of marriage between man and woman
who have lived together as husband and wife for
at least five years. The Court of Appeals
concluded that the falsity in the affidavit to the
effect that Jose and Felisa had lived together as
husband and wife for the period required by
Article 76 did not affect the validity of the
marriage, seeing that the solemnizing officer was
misled by the statements contained therein. In
this manner, the Court of Appeals gave credence
to the good-faith reliance of the solemnizing
officer over the falsity of the affidavit. The
appellate court further noted that on the dorsal
side of said affidavit of marriage, Rev. Tomas V.
Atienza, the solemnizing officer, stated that he
took steps to ascertain the ages and other
qualifications of the contracting parties and found
no legal impediment to their marriage. Finally,
the Court of Appeals dismissed Jose's argument
that neither he nor Felisa was a member of the
sect to which Rev. Tomas V. Atienza belonged.
According to the Court of Appeals, Article 56 17 of
the Civil Code did not require that either one of
the contracting parties to the marriage must
belong to the solemnizing officer's church or
religious sect. The prescription was established
only in Article 7 18 of the Family Code which does
not govern the parties' marriage.

Differing with the ruling of the Court of Appeals,

Jose filed a Motion for Reconsideration thereof.
His central opposition was that the requisites for
the proper application of the exemption from a
marriage license under Article 76 of the Civil
Code were not fully attendant in the case at bar.
In particular, Jose cited the legal condition that
the man and the woman must have been living
together as husband and wife for at least five
years before the marriage. Essentially, he
maintained that the affidavit of marital
cohabitation executed by him and Felisa was
false.
The Court of Appeals granted Jose's Motion for
Reconsideration and reversed itself. Accordingly,
it rendered an Amended Decision, dated 7
November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005
is RECALLED and SET ASIDE and another one

entered declaring the marriage between Jose A.

Dayot and Felisa C. Tecson void ab initio. AICHaS
Furnish a copy of this Amended Decision to the
Local Civil Registrar of Pasay City. 19
In its Amended Decision, the Court of Appeals
relied on the ruling of this Court in Nial v.
Bayadog, 20 and reasoned that:
In Nial v. Bayadog, where the contracting parties
to a marriage solemnized without a marriage
license on the basis of their affidavit that they
had attained the age of majority, that being
unmarried, they had lived together for at least
five (5) years and that they desired to marry each
other, the Supreme Court ruled as follows:
". . . In other words, the five-year common-law
cohabitation period, which is counted back from
the date of celebration of marriage, should be a
period of legal union had it not been for the
absence of the marriage. This 5-year period
should be the years immediately before the day
of the marriage and it should be a period of
cohabitation characterized by exclusivity
meaning no third party was involved at any time
within the 5 years and continuity that is
unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction
as to whether the parties were capacitated to
marry each other during the entire five years,
then the law would be sanctioning immorality and
encouraging parties to have common law
relationships and placing them on the same
footing with those who lived faithfully with their
spouse. Marriage being a special relationship
must be respected as such and its requirements
must be strictly observed. The presumption that a
man and a woman deporting themselves as
husband and wife is based on the approximation
of the requirements of the law. The parties should
not be afforded any excuse to not comply with
every single requirement and later use the same
missing element as a pre-conceived escape
ground to nullify their marriage. There should be
no exemption from securing a marriage license
unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the
two shall make it known to the local civil registrar.
Article 80(3) of the Civil Code provides that a
marriage solemnized without a marriage license,
save marriages of exceptional character, shall be
void from the beginning. Inasmuch as the
marriage between Jose and Felisa is not covered
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by the exception to the requirement of a

marriage license, it is, therefore, void ab initio
because of the absence of a marriage license. 21
AaHTIE
Felisa sought reconsideration of the Amended
Decision, but to no avail. The appellate court
rendered a Resolution 22 dated 10 May 2007,
denying Felisa's motion.
Meanwhile, the Republic of the Philippines,
through the Office of the Solicitor General (OSG),
filed a Petition for Review before this Court in G.R.
No. 175581, praying that the Court of Appeals'
Amended Decision dated 7 November 2006 be
reversed and set aside for lack of merit, and that
the marriage between Jose and Felisa be declared
valid and subsisting. Felisa filed a separate
Petition for Review, docketed as G.R. No. 179474,
similarly assailing the appellate court's Amended
Decision. On 1 August 2007, this Court resolved
to consolidate the two Petitions in the interest of
uniformity of the Court rulings in similar cases
brought before it for resolution. 23
The Republic of the Philippines propounds the
following arguments for the allowance of its
Petition, to wit:
I
RESPONDENT FAILED TO OVERTHROW
PRESUMPTION OF THE VALIDITY OF
MARRIAGE TO FELISA.

THE
HIS

II
RESPONDENT DID NOT COME TO THE COURT
WITH CLEAN HANDS AND SHOULD NOT BE
ALLOWED
TO
PROFIT
FROM
HIS
OWN
FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE
LEGALITY OF HIS MARRIAGE FOR LACK OF
MARRIAGE LICEN[S]E. 24
Correlative to the above, Felisa submits that the
Court of Appeals misapplied Nial. 25 She
differentiates the case at bar from Nial by
reasoning that one of the parties therein had an
existing prior marriage, a circumstance which
does not obtain in her cohabitation with Jose.
Finally, Felisa adduces that Jose only sought the
annulment of their marriage after a criminal case
for bigamy and an administrative case had been
filed against him in order to avoid liability. Felisa
surmises that the declaration of nullity of their

marriage would exonerate Jose from any liability.

cSIADH
For our resolution is the validity of the marriage
between Jose and Felisa. To reach a considered
ruling on the issue, we shall jointly tackle the
related arguments vented by petitioners Republic
of the Philippines and Felisa.
The Republic of the Philippines asserts that
several
circumstances
give
rise
to
the
presumption that a valid marriage exists between
Jose and Felisa. For her part, Felisa echoes the
claim that any doubt should be resolved in favor
of the validity of the marriage by citing this
Court's ruling in Hernandez v. Court of Appeals.
26 To buttress its assertion, the Republic points to
the affidavit executed by Jose and Felisa, dated
24 November 1986, attesting that they have lived
together as husband and wife for at least five
years, which they used in lieu of a marriage
license. It is the Republic's position that the
falsity of the statements in the affidavit does not
affect the validity of the marriage, as the
essential and formal requisites were complied
with; and the solemnizing officer was not required
to investigate as to whether the said affidavit was
legally obtained. The Republic opines that as a
marriage under a license is not invalidated by the
fact that the license was wrongfully obtained, so
must a marriage not be invalidated by the fact
that the parties incorporated a fabricated
statement in their affidavit that they cohabited as
husband and wife for at least five years. In
addition, the Republic posits that the parties'
marriage contract states that their marriage was
solemnized under Article 76 of the Civil Code. It
also bears the signature of the parties and their
witnesses, and must be considered a primary
evidence of marriage. To further fortify its
Petition, the Republic adduces the following
documents: (1) Jose's notarized Statement of
Assets and Liabilities, dated 12 May 1988 wherein
he wrote Felisa's name as his wife; (2)
Certification dated 25 July 1993 issued by the
Barangay Chairman 192, Zone ZZ, District 24 of
Pasay City, attesting that Jose and Felisa had
lived together as husband and wife in said
barangay; and (3) Jose's company ID card, dated
2 May 1988, indicating Felisa's name as his wife.
The first assignment of error compels this Court
to rule on the issue of the effect of a false
affidavit under Article 76 of the Civil Code. A
survey of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and
Felisa was celebrated on 24 November 1986,
prior to the effectivity of the Family Code.
Accordingly, the Civil Code governs their union.
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Article 53 of the Civil Code spells out the

essential requisites of marriage as a contract:
cTIESa
ART. 53.No marriage shall be solemnized unless
all these requisites are complied with:
(1)Legal capacity of the contracting parties;
(2)Their consent, freely given;
(3)Authority of
marriage; and

the

person

performing

the

(4)A marriage license, except in a marriage of

exceptional character. (Emphasis ours.)
Article 58 27 makes explicit that no marriage
shall be solemnized without a license first being
issued by the local civil registrar of the
municipality where either contracting party
habitually resides, save marriages of an
exceptional character authorized by the Civil
Code, but not those under Article 75. 28 Article
80 (3) 29 of the Civil Code makes it clear that a
marriage performed without the corresponding
marriage license is void, this being nothing more
than the legitimate consequence flowing from the
fact that the license is the essence of the
marriage contract. 30 This is in stark contrast to
the old Marriage Law, 31 whereby the absence of
a marriage license did not make the marriage
void. The rationale for the compulsory character
of a marriage license under the Civil Code is that
it is the authority granted by the State to the
contracting parties, after the proper government
official has inquired into their capacity to contract
marriage. 32
Under the Civil Code, marriages of exceptional
character are covered by Chapter 2, Title III,
comprising Articles 72 to 79. To wit, these
marriages are: (1) marriages in articulo mortis or
at the point of death during peace or war, (2)
marriages in remote places, (2) consular
marriages, 33 (3) ratification of marital
cohabitation, (4) religious ratification of a civil
marriage, (5) Mohammedan or pagan marriages,
and (6) mixed marriages. 34
The instant case pertains to a ratification of
marital cohabitation under Article 76 of the Civil
Code, which provides:
ART. 76.No marriage license shall be necessary
when a man and a woman who have attained the
age of majority and who, being unmarried, have
lived together as husband and wife for at least
five years, desire to marry each other. The
contracting parties shall state the foregoing facts

in an affidavit before any person authorized by

law to administer oaths. The official, priest or
minister who solemnized the marriage shall also
state in an affidavit that he took steps to
ascertain the ages and other qualifications of the
contracting parties and that he found no legal
impediment to the marriage. CHDAEc
The reason for the law, 35 as espoused by the
Code Commission, is that the publicity attending
a marriage license may discourage such persons
who have lived in a state of cohabitation from
legalizing their status. 36
It is not contested herein that the marriage of
Jose and Felisa was performed without a marriage
license. In lieu thereof, they executed an affidavit
declaring that "they have attained the age of
maturity; that being unmarried, they have lived
together as husband and wife for at least five
years; and that because of this union, they desire
to marry each other." 37 One of the central issues
in the Petition at bar is thus: whether the falsity
of an affidavit of marital cohabitation, where the
parties have in truth fallen short of the minimum
five-year requirement, effectively renders the
marriage void ab initio for lack of a marriage
license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless,
the exceptions to the rule on the indispensability
of the formal requisite of a marriage license.
Under the rules of statutory construction,
exceptions, as a general rule, should be strictly
38 but reasonably construed. 39 They extend
only so far as their language fairly warrants, and
all doubts should be resolved in favor of the
general provisions rather than the exception. 40
Where a general rule is established by statute
with exceptions, the court will not curtail the
former or add to the latter by implication. 41 For
the exception in Article 76 to apply, it is a sine
qua non thereto that the man and the woman
must have attained the age of majority, and that,
being unmarried, they have lived together as
husband and wife for at least five years.
A strict but reasonable construction of Article 76
leaves us with no other expediency but to read
the law as it is plainly written. The exception of a
marriage license under Article 76 applies only to
those who have lived together as husband and
wife for at least five years and desire to marry
each other. The Civil Code, in no ambiguous
terms, places a minimum period requirement of
five years of cohabitation. No other reading of the
law can be had, since the language of Article 76
is precise. The minimum requisite of five years of
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cohabitation is an indispensability carved in the

language of the law. For a marriage celebrated
under Article 76 to be valid, this material fact
cannot be dispensed with. It is embodied in the
law not as a directory requirement, but as one
that partakes of a mandatory character. It is
worthy to mention that Article 76 also prescribes
that the contracting parties shall state the
requisite facts 42 in an affidavit before any
person authorized by law to administer oaths;
and that the official, priest or minister who
solemnized the marriage shall also state in an
affidavit that he took steps to ascertain the ages
and other qualifications of the contracting parties
and that he found no legal impediment to the
marriage. TaISDA
It is indubitably established that Jose and Felisa
have not lived together for five years at the time
they executed their sworn affidavit and
contracted marriage. The Republic admitted that
Jose and Felisa started living together only in June
1986, or barely five months before the
celebration of their marriage. 43 The Court of
Appeals also noted Felisa's testimony that Jose
was introduced to her by her neighbor, Teresita
Perwel, sometime in February or March 1986 after
the EDSA Revolution. 44 The appellate court also
cited Felisa's own testimony that it was only in
June 1986 when Jose commenced to live in her
house. 45
Moreover, it is noteworthy that the question as to
whether they satisfied the minimum five-year
requisite is factual in nature. A question of fact
arises when there is a need to decide on the truth
or falsehood of the alleged facts. 46 Under Rule
45, factual findings are ordinarily not subject to
this Court's review. 47 It is already well-settled
that:
The general rule is that the findings of facts of
the Court of Appeals are binding on this Court. A
recognized exception to this rule is when the
Court of Appeals and the trial court, or in this
case the administrative body, make contradictory
findings. However, the exception does not apply
in every instance that the Court of Appeals and
the trial court or administrative body disagree.
The factual findings of the Court of Appeals
remain conclusive on this Court if such findings
are supported by the record or based on
substantial evidence. 48
Therefore, the falsity of the affidavit dated 24
November 1986, executed by Jose and Felisa to
exempt them from the requirement of a marriage
license, is beyond question.

We cannot accept the insistence of the Republic

that the falsity of the statements in the parties'
affidavit will not affect the validity of marriage,
since all the essential and formal requisites were
complied with. The argument deserves scant
merit. Patently, it cannot be denied that the
marriage between Jose and Felisa was celebrated
without the formal requisite of a marriage license.
Neither did Jose and Felisa meet the explicit legal
requirement in Article 76, that they should have
lived together as husband and wife for at least
five years, so as to be excepted from the
requirement of a marriage license. AIDTHC
Anent petitioners' reliance on the presumption of
marriage, this Court holds that the same finds no
applicability to the case at bar. Essentially, when
we speak of a presumption of marriage, it is with
reference to the prima facie presumption that a
man and a woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage. 49 Restated more explicitly,
persons dwelling together in apparent matrimony
are presumed, in the absence of any counterpresumption or evidence special to the case, to
be in fact married. 50 The present case does not
involve an apparent marriage to which the
presumption still needs to be applied. There is no
question that Jose and Felisa actually entered into
a contract of marriage on 24 November 1986,
hence, compelling Jose to institute a Complaint
for Annulment and/or Declaration of Nullity of
Marriage, which spawned the instant consolidated
Petitions.
In the same vein, the declaration of the Civil Code
51 that every intendment of law or fact leans
towards the validity of marriage will not salvage
the parties' marriage, and extricate them from
the effect of a violation of the law. The marriage
of Jose and Felisa was entered into without the
requisite marriage license or compliance with the
stringent requirements of a marriage under
exceptional circumstance. The solemnization of a
marriage without prior license is a clear violation
of the law and would lead or could be used, at
least, for the perpetration of fraud against
innocent and unwary parties, which was one of
the evils that the law sought to prevent by
making a prior license a prerequisite for a valid
marriage. 52 The protection of marriage as a
sacred institution requires not just the defense of
a true and genuine union but the exposure of an
invalid one as well. 53 To permit a false affidavit
to take the place of a marriage license is to allow
an abject circumvention of the law. If this Court is
to protect the fabric of the institution of marriage,
we must be wary of deceptive schemes that
violate the legal measures set forth in our laws.
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Similarly, we are not impressed by the

ratiocination of the Republic that as a marriage
under a license is not invalidated by the fact that
the license was wrongfully obtained, so must a
marriage not be invalidated by a fabricated
statement that the parties have cohabited for at
least five years as required by law. The contrast is
flagrant. The former is with reference to an
irregularity of the marriage license, and not to the
absence of one. Here, there is no marriage
license at all. Furthermore, the falsity of the
allegation in the sworn affidavit relating to the
period of Jose and Felisa's cohabitation, which
would have qualified their marriage as an
exception to the requirement for a marriage
license, cannot be a mere irregularity, for it refers
to a quintessential fact that the law precisely
required to be deposed and attested to by the
parties under oath. If the essential matter in the
sworn affidavit is a lie, then it is but a mere scrap
of paper, without force and effect. Hence, it is as
if there was no affidavit at all. caTIDE
In its second assignment of error, the Republic
puts forth the argument that based on equity,
Jose should be denied relief because he
perpetrated the fabrication, and cannot thereby
profit from his wrongdoing. This is a misplaced
invocation. It must be stated that equity finds no
room for application where there is a law. 54
There is a law on the ratification of marital
cohabitation, which is set in precise terms under
Article 76 of the Civil Code. Nonetheless, the
authorities are consistent that the declaration of
nullity of the parties' marriage is without
prejudice to their criminal liability. 55
The Republic further avers in its third assignment
of error that Jose is deemed estopped from
assailing the legality of his marriage for lack of a
marriage license. It is claimed that Jose and Felisa
had lived together from 1986 to 1990,
notwithstanding Jose's subsequent marriage to
Rufina Pascual on 31 August 1990, and that it
took Jose seven years before he sought the
declaration of nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage
is imprescriptible. 56 Jose and Felisa's marriage
was celebrated sans a marriage license. No other
conclusion can be reached except that it is void
ab initio. In this case, the right to impugn a void
marriage does not prescribe, and may be raised
any time.
Lastly, to settle all doubts, jurisprudence has laid
down the rule that the five-year common-law
cohabitation period under Article 76 means a
five-year period computed back from the date of
celebration of marriage, and refers to a period of

legal union had it not been for the absence of a

marriage. 57 It covers the years immediately
preceding the day of the marriage, characterized
by exclusivity meaning no third party was
involved at any time within the five years and
continuity that is unbroken. 58
WHEREFORE, the Petitions are DENIED. The
Amended Decision of the Court of Appeals, dated
7 November 2006 in CA-G.R. CV No. 68759,
declaring the marriage of Jose Dayot to Felisa
Tecson-Dayot void ab initio, is AFFIRMED, without
prejudice to their criminal liability, if any. No
costs. aAEIHC
SO ORDERED.
Austria-Martinez, Tinga, * Velasco, Jr. ** and
Reyes, JJ., concur.
FIRST DIVISION
[G.R. No. 133778. March 14, 2000.]
ENGRACE NIAL for Herself and as Guardian ad
Litem of the minors BABYLINE NIAL, INGRID
NIAL, ARCHIE NIAL & PEPITO NIAL, JR.,
petitioners, vs. NORMA BAYADOG, respondent.
Roldan R. Mangubat for petitioners.
Daryll A. Amante for private respondent.
SYNOPSIS
Pepito Nial was married to Teodulfa Bellones.
Out of their marriage were born herein
petitioners. Teodulfa was shot by Pepito resulting
in her death on April 24, 1985. One year and 8
months thereafter, Pepito and respondent Norma
Badayog got married without any marriage
license. On February 19, 1997, Pepito died in a
car accident. After their father's death, petitioners
filed a petition for declaration of nullity of the
marriage of Pepito to Norma alleging that the said
marriage was void for lack of a marriage license.
The case was filed under the assumption that the
validity or invalidity of the second marriage would
affect petitioner's successional rights. Norma filed
a motion to dismiss on the ground that
petitioners have no cause of action since they are
not among the persons who could file an action
for "annulment of marriage" under Article 47 of
the Family Code. The lower court ruled that
petitioners should have filed the action to declare
null and void their father's marriage to
respondent before his death, applying by analogy
Article 47 of the Family Code which enumerates
the time and the persons who could initiate an
action for annulment of marriage. Hence, this
petition. AcTDaH
The Supreme Court reversed and set aside the
assailed decision of the trial court. The Court
ruled that the second marriage involved in this
case is not covered by the exception to the
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requirement of a marriage license, therefore, it is

void ab initio because of the absence of such
element. According to the Court, it can not be
said that Pepito and respondent have lived with
each other as husband and wife for at least five
years prior to their wedding day. From the time
Pepito's first marriage was dissolved to the time
of his marriage with respondent, only about
twenty months had elapsed. Even assuming that
Pepito and his first wife had separated in fact,
and thereafter both Pepito and respondent had
started living with each other that has already
lasted for five years, the fact remains that their
five-year period cohabitation was not the
cohabitation contemplated by law. It should be in
the nature of a perfect union that is valid under
the law but rendered imperfect only by the
absence of the marriage contract. Pepito had a
subsisting marriage at the time when he started
cohabiting with respondent. It is immaterial that
when they lived with each other, Pepito had
already been separated in fact from his lawful
spouse. The subsistence of the marriage even
where there was actual severance of the filial
companionship between the spouses cannot
make any cohabitation by either spouse with any
third party as being one as "husband and wife."
The Court also ruled that petitioners have the
personality to file a petition to declare their
father's marriage void because a void marriage
can be attacked collaterally and can be
questioned even after the death of either party.
SYLLABUS
1.CIVIL LAW; CIVIL CODE; MARRIAGE;
MARRIAGES OF EXCEPTIONAL CHARACTER;
THE
5-YEAR
COHABITATION
PERIOD
CONTEMPLATED BY ARTICLE 76 OF THE CIVIL
CODE SHOULD BE THE YEARS IMMEDIATELY
BEFORE THE DAY OF THE MARRIAGE AND IT
SHOULD BE A PERIOD OF COHABITATION
CHARACTERIZED BY EXCLUSIVITY MEANING
NO THIRD PARTY WAS INVOLVED AT ANY
TIME WITHIN THE 5 YEARS AND CONTINUITY
THAT IS UNBROKEN. Working on the
assumption that Pepito and Norma have lived
together as husband and wife for five years
without the benefit of marriage, that five-year
period should be computed on the basis of a
cohabitation as "husband and wife" where the
only missing factor is the special contract of
marriage to validate the union. In other words,
the five-year common-law cohabitation period,
which is counted back from the date of
celebration of marriage, should be a period of
legal union had it not been for the absence of the
marriage. This 5-year period should be the years
immediately before the day of the marriage and it
should be a period of cohabitation characterized
by exclusivity meaning no third party was

involved at any time within the 5 years and

continuity that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed
without any distinction as to whether the parties
were capacitated to marry each other during the
entire five years, then the law would be
sanctioning immorality and encouraging parties
to have common law relationships and placing
them on the same footing with those who lived
faithfully with their spouse. Marriage being a
special relationship must be respected as such
and its requirements must be strictly observed.
The presumption that a man and a woman
deporting themselves as husband and wife is
based on the approximation of the requirements
of the law. The parties should not be afforded any
excuse to not comply with every single
requirement and later use the same missing
element as a pre-conceived escape ground to
nullify their marriage. There should be no
exemption from securing a marriage license
unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the
two shall make it known to the local civil registrar.
2.ID.; ID.; ID.; ID.; CASE AT BAR; THE FIVEYEAR
COHABITATION
OF
PETITIONERS'
FATHER AND PRIVATE RESPONDENT WAS
NOT THE COHABITATION CONTEMPLATED BY
LAW; THE SUBSISTENCE OF THE MARRIAGE
EVEN
WHERE
THERE
WAS
ACTUAL
SEVERANCE OF THE FILIAL COMPANIONSHIP
BETWEEN THE SPOUSES CANNOT MAKE ANY
COHABITATION BY EITHER SPOUSE WITH
ANY THIRD PARTY AS BEING ONE AS
"HUSBAND AND WIFE." In this case, at the
time of Pepito and respondent's marriage, it
cannot be said that they have lived with each
other as husband and wife for at least five years
prior to their wedding day. From the time Pepito's
first marriage was dissolved to the time of his
marriage with respondent, only about twenty
months had elapsed. Even assuming that Pepito
and his first wife had separated in fact, and
thereafter both Pepito and respondent had
started living with each other that has already
lasted for five years, the fact remains that their
five-year period cohabitation was not the
cohabitation contemplated by law. It should be in
the nature of a perfect union that is valid under
the law but rendered imperfect only by the
absence of the marriage contract. Pepito had a
subsisting marriage at the time when he started
cohabiting with respondent. It is immaterial that
when they lived with each other, Pepito had
already been separated in fact from his lawful
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spouse. The subsistence of the marriage even

where there was actual severance of the filial
companionship between the spouses cannot
make any cohabitation by either spouse with any
third party as being one as "husband and wife."
3.ID.; ID.; ID.; ID.; PETITIONERS HAVE THE
PERSONALITY TO FILE A PETITION TO
DECLARE THEIR FATHER'S MARRIAGE VOID
EVEN AFTER HIS DEATH; VOID MARRIAGES
CAN BE ATTACKED COLLATERALLY AND CAN
BE QUESTIONED EVEN AFTER THE DEATH OF
EITHER PARTY. Contrary to respondent
judge's ruling, Article 47 of the Family Code
cannot be applied even by analogy to petitions
for declaration of nullity of marriage. The second
ground for annulment of marriage relied upon by
the trial court, which allows "the sane spouse" to
file an annulment suit "at any time before the
death of either party" is inapplicable. Article 47
pertains to the grounds, periods and persons who
can file an annulment suit, not a suit for
declaration of nullity of marriage. The Code is
silent as to who can file a petition to declare the
nullity of a marriage. Voidable and void marriages
are not identical. A marriage that is annullable is
valid until otherwise declared by the court;
whereas a marriage that is void ab initio is
considered as having never to have taken place
and cannot be the source of rights. The first can
be generally ratified or confirmed by free
cohabitation or prescription while the other can
never be ratified. A voidable marriage cannot be
assailed collaterally except in a direct proceeding
while a void marriage can be attacked collaterally.
Consequently, void marriages can be questioned
even after the death of either party but voidable
marriages can be assailed only during the lifetime
of the parties and not after death of either, in
which case the parties and their offspring will be
left as if the marriage had been perfectly valid.
That is why the action or defense for nullity is
imprescriptible, unlike voidable marriages where
the action prescribes. Only the parties to a
voidable marriage can assail it but any proper
interested party may attack a void marriage. Void
marriages have no legal effects except those
declared by law concerning the properties of the
alleged spouses, regarding co-ownership or
ownership through actual joint contribution, and
its effect on the children born to such void
marriages as provided in Article 50 in relation to
Article 43 and 44 as well as Article 51, 53 and 54
of the Family Code. On the contrary, the property
regime governing voidable marriages is generally
conjugal partnership and the children conceived
before its annulment are legitimate.
DECISION
YNARES-SANTIAGO, J p:

May the heirs of a deceased person file a petition

for the declaration of nullity of his marriage after
his death?
Pepito Nial was married to Teodulfa Bellones on
September 26, 1974. Out of their marriage were
born herein petitioners. Teodulfa was shot by
Pepito resulting in her death on April 24, 1985.
One year and 8 months thereafter or on
December 11, 1986, Pepito and respondent
Norma Badayog got married without any
marriage license. In lieu thereof, Pepito and
Norma executed an affidavit dated December 11,
1986 stating that they had lived together as
husband and wife for at least five years and were
thus exempt from securing a marriage license. On
February 19, 1997, Pepito died in a car accident.
After their father's death, petitioners filed a
petition for declaration of nullity of the marriage
of Pepito to Norma alleging that the said marriage
was void for lack of a marriage license. The case
was filed under the assumption that the validity
or invalidity of the second marriage would affect
petitioner's successional rights. Norma filed a
motion to dismiss on the ground that petitioners
have no cause of action since they are not among
the persons who could file an action for
"annulment of marriage" under Article 47 of the
Family Code. LibLex
Judge Ferdinand J. Marcos of the Regional Trial
Court of Toledo City, Cebu, Branch 59, dismissed
the petition after finding that the Family Code is
"rather silent, obscure, insufficient" to resolve the
following issues:
(1)Whether or not plaintiffs have a cause of
action against defendant in asking for the
declaration of the nullity of marriage of their
deceased father, Pepito G. Nial, with her
specially so when at the time of the filing of this
instant suit, their father Pepito G. Nial is already
dead;
(2)Whether or not the second marriage of
plaintiffs' deceased father with defendant is null
and void ab initio;
(3)Whether or not plaintiffs are estopped from
assailing the validity of the second marriage after
it was dissolved due to their father's death. 1
Thus, the lower court ruled that petitioners
should have filed the action to declare null and
void their father's marriage to respondent before
his death, applying by analogy Article 47 of the
Family Code which enumerates the time and the
persons who could initiate an action for
annulment of marriage. 2 Hence, this petition for
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review with this Court grounded on a pure

question of law.
This petition was originally dismissed for noncompliance with Section 11, Rule 13 of the 1997
Rules of Civil Procedure, and because "the
verification failed to state the basis of petitioner's
averment that the allegations in the petition are
'true and correct.'" It was thus treated as an
unsigned pleading which produces no legal effect
under Section 3, Rule 7, of the 1997 Rules. 3
However, upon motion of petitioners, this Court
reconsidered the dismissal and reinstated the
petition for review. 4
The two marriages involved herein having been
solemnized prior to the effectivity of the Family
Code (FC), the applicable law to determine their
validity is the Civil Code which was the law in
effect at the time of their celebration. 5 A valid
marriage license is a requisite of marriage under
Article 53 of the Civil Code, 6 the absence of
which renders the marriage void ab initio
pursuant to Article 80(3) 7 in relation to Article
58. 8 The requirement and issuance of marriage
license is the State's demonstration of its
involvement and participation in every marriage,
in the maintenance of which the general public is
interested. 9 This interest proceeds from the
constitutional mandate that the State recognizes
the sanctity of family life and of affording
protection to the family as a basic "autonomous
social
institution."
10
Specifically,
the
Constitution considers marriage as an "inviolable
social institution," and is the foundation of family
life which shall be protected by the State. 11 This
is why the Family Code considers marriage as "a
special contract of permanent union" 12 and case
law considers it not just an adventure but a
lifetime commitment." 13
However there are several instances recognized
by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in
Article 76, 14 referring to the marriage of a man
and a woman who have lived together and
exclusively with each other as husband and wife
for a continuous and unbroken period of at least
five years before the marriage. The rationale why
no license is required in such case is to avoid
exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage
due to the publication of every applicant's name
for a marriage license. The publicity attending the
marriage license may discourage such persons
from legitimizing their status. 15 To preserve
peace in the family, avoid the peeping and
suspicious eye of public exposure and contain the
source of gossip arising from the publication of
their names, the law deemed it wise to preserve

their privacy and

requirement. cda

exempt

them

from

that

There is no dispute that the marriage of

petitioners' father to respondent Norma was
celebrated without any marriage license. In lieu
thereof, they executed an affidavit stating that
"they have attained the age of majority, and,
being unmarried, have lived together as husband
and wife for at least five years, and that we now
desire to marry each other." 16 The only issue
that needs to be resolved pertains to what nature
of cohabitation is contemplated under Article 76
of the Civil Code to warrant the counting of the
five year period in order to exempt the future
spouses from securing a marriage license. Should
it be a cohabitation wherein both parties are
capacitated to marry each other during the entire
five-year continuous period or should it be a
cohabitation wherein both parties have lived
together and exclusively with each other as
husband and wife during the entire five-year
continuous period regardless of whether there is
a legal impediment to their being lawfully
married, which impediment may have either
disappeared or intervened sometime during the
cohabitation period?
Working on the assumption that Pepito and
Norma have lived together as husband and wife
for five years without the benefit of marriage,
that five-year period should be computed on the
basis of a cohabitation as "husband and wife"
where the only missing factor is the special
contract of marriage to validate the union. In
other
words,
the
five-year
common-law
cohabitation period, which is counted back from
the date of celebration of marriage, should be a
period of legal union had it not been for the
absence of the marriage. This 5-year period
should be the years immediately before the day
of the marriage and it should be a period of
cohabitation characterized by exclusivity
meaning no third party was involved at any time
within the 5 years and continuity that is
unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction
as to whether the parties were capacitated to
marry each other during the entire five years,
then the law would be sanctioning immorality and
encouraging parties to have common law
relationships and placing them on the same
footing with those who lived faithfully with their
spouse. Marriage being a special relationship
must be respected as such and its requirements
must be strictly observed. The presumption that a
man and a woman deporting themselves as
husband and wife is based on the approximation
of the requirements of the law. The parties should
not be afforded any excuse to not comply with
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every single requirement and later use the same

missing element as a pre-conceived escape
ground to nullify their marriage. There should be
no exemption from securing a marriage license
unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the
two shall make it known to the local civil registrar.
17 The Civil Code provides:
Article 63: ". . . . This notice shall request all
persons having knowledge of any impediment to
the marriage to advice the local civil registrar
thereof. . . . ."
Article 64: "Upon being advised of any alleged
impediment to the marriage, the local civil
registrar shall forthwith make an investigation,
examining persons under oath. . . ."
This is reiterated in the Family Code thus:
Article 17 provides in part: ". . . . This notice shall
request all persons having knowledge of any
impediment to the marriage to advise the local
civil registrar thereof. . . . ."
Article 18 reads in part: ". . . . In case of any
impediment known to the local civil registrar or
brought to his attention, he shall note down the
particulars thereof and his findings thereon in the
application for a marriage license. . . . ." cdrep
This is the same reason why our civil laws, past or
present, absolutely prohibited the concurrence of
multiple marriages by the same person during
the
same
period.
Thus,
any
marriage
subsequently contracted during the lifetime of
the first spouse shall be illegal and void, 18
subject only to the exception in cases of absence
or where the prior marriage was dissolved or
annulled. The Revised Penal Code complements
the civil law in that the contracting of two or more
marriages and the having of extramarital affairs
are considered felonies, i.e., bigamy and
concubinage and adultery. 19 The law sanctions
monogamy.
In this case, at the time of Pepito and
respondent's marriage, it cannot be said that
they have lived with each other as husband and
wife for at least five years prior to their wedding
day. From the time Pepito's first marriage was
dissolved to the time of his marriage with
respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first
wife had separated in fact, and thereafter both

Pepito and respondent had started living with

each other that has already lasted for five years,
the fact remains that their five-year period
cohabitation
was
not
the
cohabitation
contemplated by law. It should be in the nature of
a perfect union that is valid under the law but
rendered imperfect only by the absence of the
marriage contract. Pepito had a subsisting
marriage at the time when he started cohabiting
with respondent. It is immaterial that when they
lived with each other, Pepito had already been
separated in fact from his lawful spouse. The
subsistence of the marriage even where there
was actual severance of the filial companionship
between the spouses cannot make any
cohabitation by either spouse with any third party
as being one as "husband and wife."
Having determined that the second marriage
involved in this case is not covered by the
exception to the requirement of a marriage
license, it is void ab initio because of the absence
of such element.
The next issue to be resolved is: do petitioners
have the personality to file a petition to declare
their father's marriage void after his death?
Contrary to respondent judge's ruling, Article 47
of the Family Code 20 cannot be applied even by
analogy to petitions for declaration of nullity of
marriage. The second ground for annulment of
marriage relied upon by the trial court, which
allows "the sane spouse" to file an annulment suit
"at any time before the death of either party" is
inapplicable. Article 47 pertains to the grounds,
periods and persons who can file an annulment
suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage.
Voidable and void marriages are not identical. A
marriage that is annullable is valid until otherwise
declared by the court; whereas a marriage that is
void ab initio is considered as having never to
have taken place 21 and cannot be the source of
rights. The first can be generally ratified or
confirmed by free cohabitation or prescription
while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in
a direct proceeding while a void marriage can be
attacked
collaterally.
Consequently,
void
marriages can be questioned even after the
death of either party but voidable marriages can
be assailed only during the lifetime of the parties
and not after death of either, in which case the
parties and their offspring will be left as if the
marriage had been perfectly valid. 22 That is why
the action or defense for nullity is imprescriptible,
unlike voidable marriages where the action
prescribes. Only the parties to a voidable
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marriage can assail it but any proper interested

party may attack a void marriage. Void marriages
have no legal effects except those declared by
law concerning the properties of the alleged
spouses, regarding co-ownership or ownership
through actual joint contribution, 23 and its effect
on the children born to such void marriages as
provided in Article 50 in relation to Article 43 and
44 as well as Article 51, 53 and 54 of the Family
Code. On the contrary, the property regime
governing voidable marriages is generally
conjugal partnership and the children conceived
before its annulment are legitimate.
Contrary to the trial court's ruling, the death of
petitioner's father extinguished the alleged
marital bond between him and respondent. The
conclusion is erroneous and proceeds from a
wrong premise that there was a marriage bond
that was dissolved between the two. It should be
noted that their marriage was void hence it is
deemed as if it never existed at all and the death
of either extinguished nothing. cdasia
Jurisprudence under the Civil Code states that no
judicial decree is necessary in order to establish
the nullity of a marriage. 24 "A void marriage
does not require a judicial decree to restore the
parties to their original rights or to make the
marriage void but though no sentence of
avoidance be absolutely necessary, yet as well
for the sake of good order of society as for the
peace of mind of all concerned, it is expedient
that the nullity of the marriage should be
ascertained and declared by the decree of a court
of competent jurisdiction." 25 "Under ordinary
circumstances, the effect of a void marriage, so
far as concerns the conferring of legal rights upon
the parties, is as though no marriage had ever
taken place. And therefore, being good for no
legal purpose, its invalidity can be maintained in
any proceeding in which the fact of marriage may
be material, either direct or collateral, in any civil
court between any parties at any time, whether
before or after the death of either or both the
husband and the wife, and upon mere proof of
the facts rendering such marriage void, it will be
disregarded or treated as non-existent by the
courts." It is not like a voidable marriage which
cannot be collaterally attacked except in direct
proceeding instituted during the lifetime of the
parties so that on the death of either, the
marriage cannot be impeached, and is made
good ab initio. 26 But Article 40 of the Family
Code expressly provides that there must be a
judicial declaration of the nullity of a previous
marriage, though void, before a party can enter
into a second marriage 27 and such absolute
nullity can be based only on a final judgment to
that effect. 28 For the same reason, the law

makes either the action or defense for the

declaration of absolute nullity of marriage
imprescriptible. 29 Corollarily, if the death of
either party would extinguish the cause of action
or the ground for defense, then the same cannot
be considered imprescriptible.
However, other than for purposes of remarriage,
no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes,
such as but not limited to determination of
heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property
regime, or a criminal case for that matter, the
court may pass upon the validity of marriage
even in a suit not directly instituted to question
the same so long as it is essential to the
determination of the case. This is without
prejudice to any issue that may arise in the case.

36 | F a m i l y

Code

Art

27-35

cases

When such need arises, a final judgment of

declaration of nullity is necessary even if the
purpose is other than to remarry. The clause "on
the basis of a final judgment declaring such
previous marriage void" in Article 40 of the Family
Code connotes that such final judgment need not
be obtained only for purpose of remarriage.
WHEREFORE, the petition is GRANTED. The
assailed Order of the Regional Trial Court, Toledo
City, Cebu, Branch 59, dismissing Civil Case No.
T-639, is REVERSED and SET ASIDE. The said case
is ordered REINSTATED. cdtai
SO ORDERED.
Davide, Jr., C.J., Puno and Kapunan, JJ., concur.
Pardo, J., is on official business abroad.